Delhi District Court
State vs . (1) Harpreet Singh on 22 August, 2009
1
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01/SOUTH
PATIALA HOUSE COURT
SESSIONS CASE NO. 10/2004
State Vs. (1) Harpreet Singh
S/o Amrik Singh
R/o VPO Badri Kalan
Distt. Amritsar,
Punjab.
(2) Satyender Singh
S/o Parmanand
R/o VPO Kisranti
PS Sampla Distt.
Rohtak, Haryana.
(3) Kuldeep Singh
S/o Mool Singh
R/o VPO Lunwa
PS Nawa Distt. Nagaur
Rajasthan.
(4) Munesh Kumar
S/o Parmal Singh
R/o Vill. Abdullapur
Mewla
PO Amin Nagar, Sarai
District Baghpat, U.P.
FIR No. 247/03
Police Station Chanakya Puri
Under Section 366/394/376 IPC
2
Date of Judgment 17/08/09
Date of order on sentence 22/08/09
ORDER ON SENTENCE
By my judgment dated 17/08/09, the accused Harpreet
and Satinder were convicted for the offences under Section 376
(2) (g) IPC and all the four accused were convicted of the
charges for the offences under Sections 394/366/34 IPC and the
two accused Kuldeep and Munesh were acquitted of the said
Charge under Section 376 (2) (g) IPC.
Ld. Addl PP has vehemently argued that the
prosecutrix a minor girl, was kidnapped and gang raped so there
is no ground for leniency against convicted persons. It is argued
that accused/convicted persons have committed heinous offence
u/S 394 IPC which is also punishable upto life imprisonment and
other serious offence committed by all four accused persons is
the offence u/S 366 IPC. So, deterrent punishment should be
awarded to the accused persons.
The arguments of Sh. Ranbir Sharma, learned
3
Counsel for the accused Harpreet and Satinder are that accused
Satinder has minor daughter aged 11 years studying in 5th class
and has a wife who is uneducated. Accused Satinder is sole
bread earner of his family and has to support other family
members. He has clean antecedents and has served the army
for the last 7 years. About Harpreet Singh it is argued that he is
unmarried has an aged mother to support. He is in custody for
the last about 6 years and has clean antecedents. So lenient
view be taken against him. It is argued that both accused
Harpreet and Satinder should be sentenced to the period of
imprisonment already undergone by them during investigation
and trial of the case. To supplement the oral arguments, learned
counsel for the accused Harpeet and Satinder has also filed
application for taking lenient view against these two accused
persons.
The arguments of Sh. Maninder Singh, Advocate
learned Counsel for the accused Munesh is that he is in custody
for the last 6 years and has clean antecedents. He has a wife
4
and two children to support. He is held guilty for committing
robbery from the friend of prosecutrix and not from the
prosecutrix. He was only accomplice of co-accused Harpreet. It
is argued that there is no injury on the person of prosecution
witness Ashish, the friend of the prosecutrix and he as per
prosecution case was slapped by co-accused Harpreet, so
lenient view may be taken against the accused Munesh. It is
argued that it is not that the offence u/S 366 IPC is punishable
with minimum imprisonment of 10 years and same is the
situation of Section 394 IPC. So, court should exercise its
discretion and take lenient view against accused Munesh. He
has relied upon some authorities referred in subsequent part of
this order.
The arguments of Sh. Vikas Arora, Advocate learned
Counsel for accused Kuldeep is that the accused Kuldeep is 35
years old. He has a son aged 8 years and 5 brothers and sisters
also. His father is aged about 65 years and he has to maintain
his family. Due to his continuous detention in jail his family is
5
facing hardship. It is argued that accused Kuldeep was never
subjected to any departmental enquiry. He was never involved
in any crime. He is the sole bread earner of his family and has
passed 12th class, so he deserves lenient view and if the jail
rules regarding remission of sentence on account of good
conduct etc. are taken into account, he is entitled to the
imprisonment for the period of 8 years and can be treated as
undergone as per jail rules. Therefore, it is requested that
accused Kuldeep should be sentenced to imprisonment already
undergone by him during investigation and trial court of the case.
Reliance is placed on same authorities relied upon by learned
Counsel for the accused Munesh.
Accused Kuldeep and accused Satinder have made
oral submissions for taking lenient view against them by stating
that they were innocent and have been falsely implicated in this
case.
I have heard learned Additional Public Prosecutor and
learned Counsel for the accused persons and accused Kuldeep
6
and Satinder in person and have gone through the record of the
case and the applications for lenient view filed on behalf of the
accused Harpreet and accused Satinder and I have also gone
through the relevant provisions of law carefully.
First I take up the arguments of learned counsel for
convict Harpreet and Satender for the offence of gang rape for
which they are convicted under Section 376 (2) (g) IPC. This
offence is punishable with minimum imprisonment of 10 years
which may extend to life imprisonment. However, the sentence
of imprisonment can be reduced from minimum of 10 years for
adequate and special reasons. The convict guilty for such an
offence is also liable to fine.
Before adverting into the facts to decide the
imprisonment to award against convict Harpreet and Satender
for the said offence of gang rape it would be appropriate to have
a look at some of the pronouncements of Hon'ble Supreme
Court with regard to sex crimes against women.
In State of Punjab v. Gurmit Singh, (SC) 1996(1)
7
R.C.R.(Criminal) 533 : 1996 A.I.R. (SC) 1393 : 1996 Cri.L.J.
1728 it was held:
"21. Of late, crime against women in
general and rape in particular is on the
increase. It is an irony that while we are
celebrating women's rights in all spheres,
we show little or no concern for her
honour. It is a sad reflection on the attitude
of indifference of the society towards the
violation of human dignity of the victims of
sex crimes. We must remember that a
rapist not only violates the victim's privacy
and personal integrity, but inevitably
causes serious psychological as well as
physical harm in the process. Rape is not
merely a physical assault - it is often
destructive of the whole personality of the
victim. A murder destroys the physical
body of his victim, a rapist degrades the
very soul of the helpless female. The
Courts, therefore, shoulder a great
responsibility while trying an accused on
charges of rape. They must deal with such
cases with utmost sensitivity.
......................"
It was held in In State of Madhya Pradesh v. Munna
Choubey, (SC) 2005(2) S.C.C. 710 : 2005 A.I.R. (SC) 682 :
2005(1) R.C.R.(Criminal) 831 :: 2005 Cri.L.J. 913 (S.C) as
follows:-
:
8
"7. The physical scar may heal up, but the
mental scar will always remain. When a
woman is ravished, what is inflicted is not
merely physical injury but the deep sense
of some deathless shame."
It was further held as follows:
"In Mahesh v. State of M.P.
(1987)2 SCR 710), this Court while
refusing to reduce the death sentence
observed thus :
"It will be a mockery of justice to
permit the accused to escape the extreme
penalty of law when faced with such
evidence and such cruel acts. To give the
lesser punishment for the accused would
be to render the justicing system of the
country suspect. The common man will
lose faith in courts. In such cases, he
understands and appreciates the language
of deterrence more than the reformative
jargon."
9. Therefore, undue sympathy to impose
inadequate sentence would do more harm
to the justice system to undermine the
public confidence in the efficacy of law and
society could no long endure under such
serious threats. It is, therefore, the duty of
every court to award proper sentence
having regard to the nature of the offence
and the manner in which it was executed
or committed etc. This position was
9
illuminatingly stated by this Court in
Sevaka Perumal etc. v. State of Tamil
Naidu, 1991(2) RCR(Crl.) 427 (SC) : (AIR
1991 SC 1463).
10. The criminal law adheres in general to
the principle of proportionality in
prescribing liability according to the
culpability of each kind of criminal conduct.
It ordinarily allows some significant
discretion to the Judge in arriving at a
sentence in each case, presumably to
permit sentences that reflect more subtle
considerations of culpability that are raised
by the special facts of each case. Judges
in essence affirm that punishment ought
always to fit the crime; yet in practice
sentences are determined largely by other
considerations. Sometimes it is the
correctional needs of the perpetrator that
are offered to justify a sentence.
Sometimes the desirability of keeping him
out of circulation, and sometimes even the
tragic results of his crime. Inevitably these
considerations cause a departure from just
desert as the basis of punishment and
create cases of apparent injustice that are
serious and widespread.
11. Proportion between crime and
punishment is a goal respected in
principle, and in spite of errant notions, it
remains a strong influence in the
determination of sentences. The practice
of punishing all serious crimes with equal
severity is now unknown in civilized
societies, but such a radical departure
10
from the principle of proportionality has
disappeared from the law only in recent
times. Even now for a single grave
infraction drastic sentences are imposed.
Anything less than a penalty of greatest
severity for any serious crime is thought
then to be a measure of toleration that is
unwarranted and unwise. But in fact, quite
apart from those considerations that make
punishment unjustifiable when it is out of
proportion to the crime, uniformly
disproportionate punishment has some
very undesirable practical consequences."
(See also State of M.P. v. Basodi, (SC) 2009(2)
R.C.R.(Criminal) 842 : 2009(3) R.A.J. 345; State of Rajasthan
v. Gajendra Singh , (SC) 2008(3) R.C.R.(Criminal) 943 :
2008(4) R.A.J. 680 : 2008(4) AICLR 216 : 2008(11) Scale
9;State of Punjab v. Rakesh Kumar, (SC) 2008(4)
R.C.R.(Criminal) 142 : 2008 A.I.R. (SC) 1365 : 2009 Cri.L.J.
396 )
In view of the above authorities emerging from Hon'ble
Supreme Court, it is clear that the sentence in rape cases should
be deterrent and there should not be any misplaced sypmathy
with the convict on the question of sentence.
As regards the question whether the facts like convicts
are first offenders or are in custody for the last about six years
and are sole bread earners of their families and have to
maintain their children and wife and aged parents, the same, in
11
my view, do not fall within proviso which deals with the grant of
lessor punishment to the convict on account of adequate and
sufficient reasons. In Munna Chaubay's case (supra) the Hon'ble
High Court has made the following other observations:
"18. In both sub-sections (1) and (2) of
Section 376 minimum sentences are
prescribed.
19. Both in cases of sub-sections (1) and
(2) the Court has the discretion to impose
a sentence of imprisonment less than the
prescribed minimum for 'adequate and
special reasons'. If the Court does not
mention such reasons in the judgment
there is no scope for awarding a sentence
lesser than the prescribed minimum.
20. In order to exercise the discretion of
reducing the sentence the statutory
requirement is that the Court has to record
"adequate and special reasons" in the
judgment and not fanciful reasons which
would permit the Court to impose a
sentence less than the prescribed
minimum. The reason has not only to be
adequate but also special. What is
adequate and special would depend upon
several factors and no strait-jacket formula
can be indicated. What is applicable to trial
Courts regarding recording reasons for a
departure from minimum sentence is
equally applicable to the High Court. The
only reason indicated by the High Court is
that the accused belonged to rural areas.
The same can by no stretch of imagination
12
be considered either adequate or special.
The requirement in law is cumulative."
In Ramesh Kumar v. State of Haryana, (SC) 2008(5)
S.C.C. 139 : 2008(3) Scale 181 : 2008(3) SCR 490 : 2008(2)
SCC(Cri) 541 the sentence of life imprisonment awarded by
courts below was not reduced by Hon'ble Supreme Court. It was
held in a gang rape case as follows:
"11. In this case the courts below have
awarded the maximum penalty against the
three accused being the life sentence .
The only plea that was raised before us
was that the appellant Ramesh comes
from the poor background and that his old
parents will be deprived of his company.
There is no material placed before the
Trial and the Appellate Court as well as
before us in support of his poverty. At any
rate we can take the notice of the fact that
the father of the appellant has been the
Sarpanch for the last 20 years. Again
there would be no question of taking a
lenient view particularly because of the
daring dastardly act on the part of the
accused persons in which the appellant
took active part inasmuch as out of the six
accused persons, he was one of the three
accused who had committed rape on the
lady. "
Therefore, none of the grounds pleaded before me on
behalf of the convicts Satender and Harpreet fall within adequate
and special reasons to attract lessor than the prescribed
13
minimum imprisonment. Rather the fact that the convict
Satender and Harpreet were working in President's Body Guard
department of President's House and were at the relevant time
given the onerous duty of the security of the President of India,
the Executive Head of the country, still they committed such
heinous offence while posted at such a sensitive place call for
exemplary and deterrent punishment to be imposed against
them.
As regards the offence under Section 394 IPC against
convict Satender and Harpreet they are guilty of committing
robbery with voluntarily causing hurt with the prosecutrix after
commission of rape and also similar robbery by voluntarily
causing hurt to the friend of the prosecutrix, prosecution witness
Ashish. The stolen amount was recovered from convict
Satender. It is true since convict Satender is convicted for
robbery with voluntarily causing hurt under Section 394 IPC he
cannot be guilty of offence under Section 411 IPC but since the
amount of robbery was also recovered from convict Satender by
the police it aggrevates the matter and call for the deterrent and
exempllory punishment against them for the offence under
Section 394 IPC also.
As regards the convict Kuldeep and Munesh is
concerned, the learned counsel for these convicts have relied
upon the following authorities:
14
1) State of Rajasthan Vs Ram Narain and others (
1996) 8 SCC 64
2) Gurmej Singh Vs State of Punjab 1995 Supp (2)
SCC 365
3) State of Rajasthan Vs Sukhpal Singh and others
(1983) 1 SCC 393
4) Devkaran and others Vs State of Rajasthan (2005)
10 SCC 255
5) State of Kerala Vs Balakrishnan 1998 SCC ( Cri)
571
6) Jarnail Singh Vs State of Punjab (1998) 8 SCC 629
In Jarnail Singh's case (supra) the accused was 17
years old so it does not apply to the present case. Balakrishnan's
case (supra) deals with offence under section 304 (II) or section
323 IPC and none of these offenences is relevant for the present
case. Devkaran' s case (supra) deals with sections
302/34,323/34 and section 326 IPC and not with section 366,
section 394 IPC so this case also does not help to the convicts
Kuldeep and Munesh. Sukhpal Singh's case (supra) deals with
bank dacoity and not with section 366 IPC and 394 IPC. So this
case also is of no help to the said two convicts. Gurmej Singh's
case (supra) deals with section 393 IPC and section 452 IPC
and section 3 of TADA while the convict Kuldeep and Munesh
were convicted under section 394 and 366. Therefore, Gurmej
15
Singh's case is also not of help to these convicts.
In Ramnarain's case (supra) the offence of kidnapping
for forced sexual intercourse and rape under section 376 IPC
and wrongful confinement under section 342 IPC were
committed on 14.8.83. But the provisions of section 376 IPC
were made strangent with minimum deterrent punishments
prescribed both for sub section (1) and (2) of section 376 IPC by
amendments made by Legislature effective from 25.12.1993.
Therefore, Ram Narain's case deals with pre amendment of
punishment of rape and its effect is diluted after 25.12.83 when
the new definition and deterrent punishment was provided in it.
However,other distinguishable feature is that convicts are posted
in President'sBody Guard and were supposed to be indiscipline.
The fact that a person posted in such sensitive place has
committed such offence aggravates the circumstance for him on
the question of punishment. Therefore, Ram Narain's case is
also of no help to the convicts Kuldeep and Munesh. Hurt is
defined in Section 319 IPC and certainly covers slapping.
Section 394 IPC foist joint liability on all four convicts irrespective
of the fact that only one convict has slapped victim. However,
convict Kuldeep and Munesh are guilty of one robbery while
convict Satinder and Harpreet of two robberies, referred in the
judgment dated 17/08/09.
In view of the above both convicts Harpreet and
16
Satender are awarded Life Imprisonment for the offence of gang
ape under section 376 (2) (g) IPC. In addition they are also
directed to pay fine of Rs 5000/- each. In default of payment of
fine defaulting convict shall undergo Simple Imprisonment for
nine months.
For the offence under Section 394 IPC convicts
Harpreet and Satender are awarded Life Imprisonment. In
addition they are also directed to pay fine of Rs 2000/- each. In
default of payment of fine defaulting convict shall undergo
Simple Imprisonment for four months.
For the offence under Section 366 IPC both convicts
Harpreet and Satender are awarded Rigorous Imprisonment for
ten years each. In addition , they are also liable to pay fine of Rs.
2000/- each. In default of payment fine defaulting convict to
undergo Simple Imprisonment for four months.
As convicts Kuldeep and Munesh are guilty of one
robbery under Section 394 IPC that two with the friend of the
prosecutrix namely Ashish, they are sentenced to undergo
Rigorous Imprisonment for a term of ten years each. In addition
they shall also pay fine of Rs 5000/- each. In default of payment
of fine defaulting convict to undergo Simple Imprisonment for
nine months. For the offence under Section 366 IPC, these
convicts Kuldeep and Munesh are sentenced to undergo
Rigorous Imprisonment for ten years each. In addition they are
17
directed to pay fine of Rs 2000/- each. In default of payment of
fine defaulting convict shall undergo Simple Imprisonment for
four months.
All the substantive sentences of imprisonment against
convicts shall run concurrently. The period of detention already
undergone by them during investigation and trial shall be set off
against the term of imprisonment imposed against them by this
order, as provided under section 428 Cr.P.C.
Judgment and order on sentence be sent to
server(www.delhidistrict courts. nic.in). Copy of the judgment
and order on sentence be supplied to convicts/accused free of
cost.
File be consigned to record room.
Announced in the open ( S.K. SARVARIA )
Court on 22.08.09 Additional Sessions Judge-
01/South Patiala House Court
18
19
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01/SOUTH
PATIALA HOUSE COURT
SESSIONS CASE NO. 247/03
State Vs. (1) Harpreet Singh
S/o Amrik Singh
R/o VPO Badri Kalan
Distt. Amritsar, Punjab.
(2) Satyender Singh
S/o Parmanand
R/o VPO Kisranti
PS Sampla Distt. Rohtak,
Haryana.
(3) Kuldeep Singh
S/o VPO Lunwa
PS Nawa Distt. Nagaur
Rajasthan.
(4) Munesh Kumar
S/o Parmal Singh
R/o Vill. Abdullapur Mewla
PO Amin Nagar, Sarai
District Baghpat, U.P.
FIR No. 247/03
Police Station Chanakya Puri
Under Section 366/394/376 IPC
Date of Institution 20/01/04
Date when arguments
were heard 24/07/09
Date of Judgment 17/08/09
JUDGMENT
The SHO of Police Station Chanakya Puri has challaned 20 the accused persons to face trial for the offences under Sections 366/394/376(2)/411/34 IPC. Keeping in view the provisions of section 228 (A) IPC and the dicta of Hon'ble Supreme Court in State of Karnataka v/s Puttraj (2004 (1) SCC 475) and Om Prakash vs Stat of Uttar Pradesh 2006 Cri.L.J 2913 the name of prosecutrix is being not given in the judgment. The Ld. Metropolitan Magistrate in compliance of provisions of section 207 Cr.P.C supplied the copies of the documents to the accused persons and committed the case to the Court of Sessions as provided under section 209 Cr.P.C. BRIEF FACTS:-
The prosecution case in brief is that on 6.10.2003, SI Satbir Singh alongwith police staff was on patrolling duty in connection with some law and order arrangement in Buddha Jayanti Park. One Ashish Kumar Sharma s/o Shri Madan Lal Sharma met him in Budha Jayanti Park. He informed SI Satbir Singh that four persons, who were wearing military dress had forcibly taken his girl friend/prosecutrix inside the bushes of the park. He also stated that one of these four persons was a Sardar and he had slapped him and 21 had also snatched Rs. 100/- from him. On this information, SI Satbir Singh along with staff and Ashish Kumar Sharma went inside the deep bushed forest/in the park in search of the prosecutrix and accused persons. During the search, the prosecutrix came weeping towards the police party. She was identified by Ashish Kumar Sharma as his girl friend. Inspector Laxmi, CAW Cell, New Delhi also reached the spot after getting the information.
Enquiries were made from her by SI Satbir Singh on the spot about the incident and statement of the prosecutrix was recorded in which she has stated, in short, that she was the student of 1st year in Jesus and Merry College. On that day i.e 6.10.2003, she along with her boy friend Ashish came to Budha Jayanti Park at about 11.00 a.m and they were strolling in the park where four persons wearing military dress met them. One Sardar and another person, his associate, who was stout built caught hold of Ashish Kumar and he was taken away. Remaining two persons were tall and one of them was fatty and another was thin built and clean shaved. One of them gagged her mouth and fatty body person caught hold of her from her hand and she was forcibly taken in the forest. She tried to save herself from them but she could not raise hue and cry as her 22 mouth was gagged. It had taken 10 minutes to reach near a military van. In the meantime, that Sardar and his associate reached near the van. Sardar and fatty built persons pulled her in the backside of the vehicle and the remaining two associates sat on the front side of the van. One of those four persons drove the vehicle for about 5 minutes. Thereafter, the vehicle was stopped and she was pulled down from the vehicle. There were heavy bushes and two of the four persons had taken her in the bushes. Her mouth was gagged. The fatty built person had committed rape on her, forcibly, against her will. Thereafter, Sardar also forcibly raped her against her will and the first person continued to gag her mouth when Sardar was committing rape on her. Sardar also slapped her and removed Rs.
120/- from her purse. After committing rape on her, both of them went away from there. She was returning back and was searching for her friend Ashish, when she met the police party and narrated the same incident to them.
Thereafter, the police party along with the complainant and Ashish searched for the accused persons in the forest and reached near the stable. The same Sardar was found sitting in the room, who was identified by Ashish Kumar and the prosecutrix. On enquiry, 23 said Sardar disclosed his name as Harpreet Singh s/o Sardar Amrik Singh r/o Vill. & PO Badri Kalan, District Amritsar, Punjab and he further disclosed the name of the rapist accomplice as Satender. He also gave the names of remaining two accomplices, who had driven the van as Manish and Kuldeep. The said Sardar further told that his three accomplices were posted in President's Body Guard (PBG). On the statement of prosecutrix , FIR No.247 dated 6.10.2003, under Sections 392/376/34 IPC was registered at Police Station Chanakya Puri and investigation was taken up by Woman Inspector Laxmi.
On 6.10.2003, site plan of the spot, the place in the forest, from, where prosecutrix was kidnapped was prepared by Investigating Officer on the pointing out of Ashish Kumar. Accused Harpreet Singh was arrested from the PBG Club office, on identification of Ashish and prosecutrix on 6.10.2003. Accused Harpreet Singh was interrogated and gave disclosure statement admitting his guilt. The medical examination of Harpreet was got conducted at RML hospital. The doctor preserved blood sample, pubic hair, underwear and semen samples of the accused at the time of medical examination.
During investigation on enquiries made from the 24 prosecutrix on the day of incident i.e 6.10.2003, she further stated that one plastic toy and one button had fallen at the spot when accused Harpreet Singh had snatched Rs. 120/- from her. She also stated that her handkerchief was used by accused Harpreet Singh to clean his penis. These articles, handkerchief, toy and button were found lying at the place of occurrence on 8.10.2003. The crime team was summoned at the spot and had inspected the scene of crime. On examination of handkerchief, blood and semen stains as well as some pubic hair were noticed. These were taken into possession in two separate parcels which were sealed with the seal of SS. On 6.10.2003, prosecutrix was taken to Lady Harding Medical College for medical examination by woman Inspector Laxmi and her medical examination was got conducted. As per medical examination doctor observed, "tear at the introitus is suggestive opinion of intercourse today, though there is no external evidence of assault. Rape to be confirmed after investigation of the samples". During medical examination, vaginal swab, vaginal smear, blood sample, pubic hair, underwear (panty) of prosecutrix were preserved by the doctor, who conducted medical examination. These articles were sealed by the Gynecologist and sealed parcel was taken into 25 possession vide seizure memo. On 6.10.2003, Investigating Officer had taken into possession clothes i.e Kurta, Salwar and chunni of the prosecutrix. On examination of clothes, blood and semen stains were noticed on the salwar and kurta. These clothes were sealed in a parcel with the seal of SS and were taken into police possession.
On 7.10.2003, accused Harpreet Singh was further interrogated and gave disclosure statement. Thereafter, he got recovered his uniform and underwear which he was wearing at the time of incident. Police remand for one day was obtained from the court. On 8.10.2003 his uniform which he was wearing at the time of incident was recovered from the bushes near the stable at his instance but his underwear could not be recovered.
On 7.10.2003 accused Satender Singh s/o Parma Nand was arrested and his personal search was taken and cash of Rs. 220/- was recovered from his personal search vide personal search memo prepared by the Investigating Officer . This accused also gave disclosure statement and got recovered his clothes i.e uniform etc. which were taken into police possession and sealed. The medical examination of accused Satender was got conducted at RML hospital. During the medical examination, blood sample, semen 26 sample, pubic hair and underwear of the accused were preserved by the doctor which were sealed by CMO, RML hospital and thereafter taken into police possession.
On 7.10.2003 accused Manish and Kuldeep Singh were also arrested by the Investigating Officer on the pointing out of accused Harpreet Singh. Their personal searches were conducted . Their disclosure statements were also recorded. Their uniforms were sealed in separate parcels and sealed with the seal of SS and sealed parcels were taken into possession. The accused persons were directed to be kept in muffled face and test identification proceedings (TIP) of the accused persons were got conducted by ld. Metropolitan Magistrate Ms. Barkha Gupta in Tihar Jail. The prosecutrix correctly identified the accused persons in TIP proceedings.
On 20.10.2003 the exhibits of the case were sent to FSL Malviya Nagar, New Delhi for examination. On 20.10.2003, draftsman Inspector Devender Singh was requisitioned on the spot and on the pointing out of SI Satbir Singh, the draftsman took measurements and notes and prepared scaled site plan. On 12.11.2003, an application was moved in the court to obtain blood samples of accused Harpreet Singh and Satender Singh. The blood 27 samples were required for further scientific examination. Both the accused persons refused to give their blood samples before the Link Metropolitan Magistrate Sh. S.K Aggarwal. The refusal proceedings of accused persons were recorded by ld. Metropolitan Magistrate . On 14.11.2003, record relating to the posting of all four accused persons in Presidents Body Guard (PBG) was collected from the concerned unit through Major Rajeev Bansal. On 12.11.2003 subsequent opinion on the MLC relating to medical examination of prosecutrix was obtained and the doctor opined, "Microscopic examination semen was detected on slide and vaginal smear. Hence rape is confirmed".
During investigation, the Investigating Officer recorded statement of witnesses under Section 161 Cr.P.C, obtained report of CFSL and of medical examination of prosecutrix and accused persons and on completion of investigation prepared the challan under section 173 Cr.P.C against the accused persons and filed it in the court through SHO, Police Station Chanakya Puri, as referred before.
28CHARGES AND PLEAS OF ACCUSED PERSONS:
The charges under Sections 366/34 and 376 (ii) (g) IPC were framed against all the accused persons. Separate charge under section 397 IPC r/w section 394/34 IPC was framed against accused Harpreet and accused Munesh Kumar. One separate charge under Section 392 read with Section 394/34 IPC was framed against accused Harpreet and accused Munesh Kumar. One separate charge under section 411 IPC was framed against accused Satyender Singh. The accused persons pleaded not guilty to the said charges framed on 02/04/2004. They claimed trial.
PROSECUTION EVIDENCE:
In support of its case, the prosecution has examined 25 witnesses in all. PW1 is Dr. Monika Hooda, Gynecologist Department, Lady Harding Hospital, New Delhi. She has medically examined the prosecutrix and has stated in brief that the prosecutrix told her that she went to Budha Garden around 10.00 am with her male friend Ashish and at 11.00 am, four men in military dress caught hold of them and slapped the boy and took the girl away in bushes. Then two men went away without assaulting her. The 29 other two men raped her in turn. They did not injure her externally. PW1 has proved the MLC of prosecutrix as Ex.PW1/A and has stated that on 22.11.2003 the investigating agency approached her for her opinion regarding rape and after examining the FSL report and MLC, she confirmed rape over the prosecutrix. She proved her opinion at point B on MLC Ex.PW1/A. She also stated that on 6.10.2003 after examining the prosecutrix, she preserved vaginal smear, High Vaginal Swab, pubic hair and panty of the prosecutrix and after sealing the same, she handed over the same to the IO.
PW2 is the prosecutrix herself and she, in brief, stated that on 6.10.2003 she and her friend Ashish went to Budha Garden to see the live Dalai Lama Camp. When they were roaming in Budha Garden, four military personnel came there and two of them caught hold of her and two caught hold of Ashish. She identified the accused persons present in court. She identified accused Kuldeep and Satender as the persons who caught hold of her and Harpreet and Manish as the persons who caught hold of Ashish. She stated that the two accused dragged her for 5-10 minutes in the jungle and there was a military vehicle parked there. In the meanwhile, two accused persons, who caught hold of Ashish also came there. Then these 30 four accused persons forcibly dragged her in the vehicle and two of the accused persons sat on the front seat and two on the rear seat. After five minutes of travelling in the vehicle, accused Satender got the vehicle stopped and got her alighted from the vehicle and Sardar and fatty boy took her towards the bushes. The witness identified accused Harpreet and Satetnder as those two persons, who took her in the bushes and after taking her in the bushes, they started beating her and accused Harpreet and then accused Satender forcibly committed rape on her. After committing rape, accused Harpreet slapped her two - three times and took out Rs. 120/- from her purse and thereafter they went through the bushes and the remaining two accused also went away with the vehicle. She started weeping and after wearing her clothes started walking on the way from which they had brought her there. There she met her friend Ashish and police and she narrated the story to the police. The police recorded her statement Ex.PW2/A. Thereafter she alongwith police went in search of accused in the jungle and near Polo Club, there was a house like structure which was locked. The police loudly asked from outside the closed door, was any body present there? The accused Harpreet came out . The prosecutrix stated that she at once identified him as 31 the person who had committed rape on her. The police arrested accused Harpreet. Then police took her to the hospital for her medical examination. The doctor took her clothes. Her parents also came there with the clothes. After 2-3 days, police again called her and she had shown the place to the police from where she and Ashish were kidnapped. On the day of incident, she could not show the place where rape was committed on her due to fear. On 17.10.2003 police called her in the jail. She identified all the four accused persons. She also stated that at the place where rape was committed, her handkerchief, one kadai wala button and blue colour toy of Cricketer, which had fallen down, and the handkerchief which the Sikh accused after committing rape threw after cleaning his private part were recovered by the police. The prosecutrix had identified her salwar, one ladies shirt and chunni as Ex.P1, P2 and P3, respectively. She also identified ladies underwear as Ex.P4 and her handkerchief as Ex.P5, her button as Ex.P6 and toy as Ex.P7. In her further examination-in-chief recorded on 26.7.2004, she stated that when the two accused persons were taking her for committing rape, other two accused persons who were standing near the vehicle stated them to come early after completing the job and they were 32 guarding from there.
PW3 is Dr. Veena Mahajan, CMO, RML hospital. She, in her statement, has proved the MLC of accused Satender Singh as Ex.PW3/A and has given the opinion that there was nothing to suggest that this accused was not able to perform sexual intercourse. She also stated that after medical examination, the semen, pubic hair, undergarment and blood samples were collected and sealed and handed over to the IO.
PW4 is Dr. A.K Shrivastava , Sr. Scientific Officer, Biology Department, FSL Delhi. He has stated that they had received 20 parcels for analysis, details of which are given in the examination-in- chief of PW4. He has testified that the blood and semen stains mixed were found on vaginal swab, underwear, salwar, ladies shirt and handkerchief and the blood of B-group was found on these articles. He also stated that blood samples were putrefied and the semen stains were found on underwear and were of B-group. He also stated that the persons involved in this case including victim can be of B- group or O-group as observed in the reaction with Antigen B and Antigen H, respectively and when the reaction was observed in col. B and O in the same exhibit, the group is mentioned as B for that 33 exhibit. He proved the reports, Ex.PW4/A and B and identified his signatures at point A to F on the same.
PW5 is Dr. Pradeep Saxena, CMO, DGHS, Nirman Bhawan, New Delhi. He medically examined accused Harpreet and has proved his MLC Ex.PW5/A. He stated that the person examined by him was capable of performing sexual intercourse. After medical examination, one blue colour underwear, pubic hair, blood sample and semen sample of the accused was collected and sealed with their hospital seal and was handed over to the IO.
PW5 also stated that he examined Ashish Kumar and found no external injury and prepared his MLC Ex.PW5/B. PW6 is Ms. Barkha Gupta, Learned Metropolitan Magistrate (M.M.) who conducted test identification proceedings of the accused persons on 17.10.2003 at Central Jail No.4, Tihar. She proved test identification proceedings (T.I.P.) of accused Kuldeep Singh Ex.PW6/A and total proceedings Ex.PW6/B. She stated that the door of the room was closed and all necessary precautions of TIP were taken by her. She proved certificate given by her as Ex.PW6/C and directions for sending the same to Ld. ACMM as Ex.PW6/D. She proved test identification proceedings of accused Manish Ex.PW6/E 34 and test identification proceedings of accused Satender as Ex.PW6/F. PW7 is Shri Sunil Kumar Aggarwal, Ld. M.M, New Delhi and has stated, in brief, that on 12.11.2003 accused Harpreet Singh and Satender were produced before him along with application of IO for taking his blood sample. The application was marked to him by ld. Link M.M. On the next date, accused Harpreet Singh refused to give his blood sample . Accused Satender also refused to give his blood sample. They were warned that their refusal may lead to adverse inference against them during trial, but they insisted for refusal. Their statements were recorded. PW7 proved the application of the IO as Ex.PW7/A and the proceedings conducted by him under his dictation, ExPW7/B and the certificate given by him, Ex.PW7/C. PW8 is Ashish Kumar and has stated, in brief, that on 6.10.2003 he along with the prosecutrix went to Budha Jayanti Park to see the function of Dalai Lama by scooter. On account of crowd, they could not see the function. They started walking on the sides of the pavement and went inside the jungle. There four persons in military dress came and two of them caught hold of him and other two caught hold of prosecutrix . He identified those two persons as 35 accused Harpreet Singh and accused Manish and identified accused Satender and Kuldeep Singh as the persons who caught hold of the prosecutrix . The witness stated that he caught the feet of accused Harpreet and asked him where he was taking him and he stated him to keep quiet, go straight. Sardar came ahead and slapped him and took out Rs. 100/- from his purse. The witness stated that he had once given a jerk and after rescuing himself ran towards park and narrated the matter to security police, who was present for Dalai Lama security. At once 4-5 police officials and 10-15 people from public collected there and they started searching the prosecutrix in the jungle. They searched for 1 or 1 ½ hours. The forest was dense and after 1 ½ hours, he saw his friend prosecutrix coming from the jungle weeping. She also narrated the story to the police and stated that two accused, who caught hold of her, had raped her. Thereafter they went to the jungle where there was an office which was locked. The police officials loudly asked was any body there? On the second call, Sardar accused Harpreet Singh came out and the prosecutrix identified him as the same person who had dragged her and who did the illicit act (galat kaam) with her. The police made enquiries from accused Harpreet Singh and he disclosed that he alongwith one co 36 accused committed rape on the prosecutrix and two of his colleagues were driving the vehicle. Thereafter, accused Harpreet Singh gave name of the other co accused persons and gave the name of accused Satender as the other person who committed rape on the prosecutrix and also name of the other person who was driving the vehicle. Thereafter, he had shown the place of kidnapping to the police.
The witness stated that on 17.10.2003 he was called to witness test identification proceedings. The witness Ashish, prosecutrix and her father went to jail in an auto and by that time, the IO had not come. The prosecutrix and her father went inside the jail and while he was standing outside the jail. 5-6 persons came there and asked his name and they asked him whether they had come for TIP of Budha Garden case and on his accepting this fact, they threatened him if he identified any person, then they would kill him. The witness stated that he was frightened and, therefore, he did not tell any thing to the IO and did not identify any body in the test identification parade and on the pretext of headache, he went straight to his house. From there, he went to his village Shabjapur.
PW9 is Constable Roop Chand, working as Photographer, 37 Photo Section, P.S Parliament Street. He stated, in brief, that on 8.10.2003 he was working as photographer in crime team and as per request of the investigating officer, he went to Budha Garden and found IO and other police officials present there. He took 18 photographs of the spot inside the jungle. Positives of the photographs are Ex.PX1 to PX18. He also stated that he had taken 7 photographs of the vehicle standing at the PS and one photograph could not be developed, hence he handed over these photographs of the vehicle to the investigating officer which are Ex.PX19 to PX24. The witness had brought the negatives which are proved as Ex.PX25 to PX49.
PW10 is Shri Vidhya Dhar Singh, Constable/Sawar in Indian Line, PBG Lines, Rashtrapati Bhawan, New Delhi. He stated, in brief, that on 6.10.2003 his duty was at gate No.23 (vehicle guard duty) between 10.30 am to 12.30 pm and he again stated perhaps between 10.00 am to 12.00 noon. He used to make departure entry of the vehicles. On that day, driver Satender bearing NO.:96D!104744H was on kachra duty and took the vehicle for this purpose. The vehicle was taken outside by Satender, who made entry at 10.55 am in his hand and as per record, the vehicle returned 38 at 12.10 p.m. He also stated that on page No.131 at Sr.No.19, the entry is in the hand of accused Satender. Attested copy of which is Ex.PW10/A. This witness was cross examined by learned Additional Public Prosecutor. but in the cross examination he stated that he did not state before the police that along with accused Satender, helper Kuldeep Singh and Manish were also present in the vehicle.
PW11 is Constable Ram Kumar, who stated, in brief, that on 6.10.2002, he was posted as Constable in PS Mandir Marg and was working as duty officer in Lady Harding Medical College. On that day, IO along with other staff and prosecutrix came to Lady Harding Medical college for medical examination of the prosecutrix . After medical examination, he handed over 4 sealed parcels and one sample seal to the investigating officer which, investigating officer seized vide memo Ex.PW11/A. PW12 is Constable Raghuraj Singh who stated, in brief, that on 6.10.02 he was posted as constable in PS Chanakyapuri. On that day, he alongwith SI Satbir, Ct.Swaroop Chand and others were on law and order duty at Budha Garden. At about 11.45 am, a boy came and informed him that his girl friend had been dragged by four persons towards jungle and they were in military uniform. 39 Thereafter, he informed SI Satbir Singh about the said information and they all proceeded towards jungle. On enquiry, the name of the boy was ascertained as Ashish. They searched the jungle on the directions of said boy but they could not get any clue. When they came out of jungle, they saw one girl weeping. The said boy pointed out that the said girl was his girl friend who had been dragged by four persons. SI Satbir Singh made enquiry from the said girl. She gave details regarding the incident. Thereafter, at her instance, they proceeded towards the jungle and after searching the jungle, they reached deep at 'ghoda maidan'. One room had been constructed thereon. The said room was locked from outside. SI Satbir in a loud voice asked the inmate to come out from the said room. Thereafter, one Sardarji came out of the said room. The said boy Ashish told that the said person Sardarji was one of the four military persons who had dragged the girl friend. His name was ascertained and he disclosed his name as Harpreet posted at President Cell. The witness identified accused Harpreet and stated that enquiries were made from him and he confessed commission of rape with the girl. Thereafter, investigating officer inspected the place from where girl was kidnapped. Accused Harpreet Singh disclosed the name of three 40 associates. In the meantime, Inspector Laxmi also reached there. The witness stated that he took rukka to the PS and got the FIR registered and returned to Budha Garden after getting the case registered. Investigation of this case was assigned to Inspector Laxmi. Accused Harpreet Singh was arrested in this case. His personal search was conducted vide memo Ex.PW12/A. He made disclosure statement Ex.PW12/B. He also stated that the prosecutrix further disclosed that one person with heavy built had snatched Rs.100/- from Ashish. On 6.10.2003, accused Harpreet was got medically examined and doctor gave sealed pulanda to him which he gave to the investigating officer . Thereafter accused Harpreet Singh was produced before ld. M.M and one day police remand was taken. Accused Harpreet Singh led the police party to Rashtrapati Bhawan. There the Colonel handed over the three accused Satender, Manish and Kuldeep to the police. They were brought to the Police Station (P.S.). They were arrested and their personal search was conducted vide memo Ex.PW12/C, D and E. They were interrogated. Their disclosure statements were recorded which are Ex.PW12/F, Ex.PW12/G and Ex.PW12/H. The witness has stated that on the personal search of accused Satender, cash of Rs. 220/- was 41 recovered. Investigating officer prepared its pulanda and seized the same vide memo Ex.PW 12/J. Thereafter accused Satender, Manish and Kuldeep were got medically examined. On 8.10.2003, accused persons were taken out of the lock up and were deeply interrogated. They led the police party to the jungle. Accused Satender disclosed the place of incident. He also pointed out the place where rape was committed. He also got recovered from the said place one handkerchief, one cartoon like toy and one button which were put in a pulanda and sealed vide memo Ex.PW12/K. The witness also stated that accused Harpreet got recovered his clothes which he was wearing at the time of incident from the jungle at "ghora maidan" outside the room. The clothes consisted of one underwear, nicker, shirt, shoes, socks and uniform and these were seized vide memo Ex.PW 12/L. The witness identified the articles recovered from the spot as Ex.P6 and P7 and he identified the handkerchief as Ex.P5.
PW13 is ASI Rajpal, who stated that he was posted on 6.10.2003 as Duty Officer at Police Station Chanakya Puri from 8 am to 4 pm. At that time, at about 3.45 pm, he received rukka from Inspector Laxmi through constable Raghunath and on the basis of 42 same, he recorded FIR No.247/03, copy of which is Ex.PW13/A. After registration of FIR, copy of FIR and original rukka were sent back to Inspector Laxmi for investigation.
PW14 is Constable Nettar Singh, who has stated that on 7.10.2003 he was posted as duty constable in RML hospital. On that day, accused Satender Singh was brought in police custody for medical examination. After his medical examination, as per directions of the medical officer, he prepared 4 pulandas consisting underwear of accused, blood sample, semen and pubic hair. The pulandas were sealed with the seal of CMO RML hospital in the presence of doctor and later on he handed over four pulandas and one sample seal to the investigating officer vide memo Ex.PW 14/A. PW15 is Inspector Davinder Singh, Draftsman, Crime Branch, ISBT, Kashmeri Gate, Delhi, who stated that on 21.10.2003 on the request of investigating officer, he visited the place of occurrence i.e Jungle Budha Jayanti Park, where he took rough notes and measurements on the pointing out of SI Satbir Singh. On the basis of those rough notes and measurement, he prepared scaled site plan Ex.PW 15/A on 28.10.2003 with correct marginal notes which bears his signatures at point A. After preparation of scaled site 43 plan, he destroyed the rough notes.
PW16 is Constable Umesh Kumar , who has stated that on 6.10.2003 he was working as D.D writer from 12.00 night to 8.00 AM. He recorded D.D No.5-B at about 7.30 a.m and proved the copy of the same as Ex.PW16/A. PW17 is Constable Jagdish Prasad, who has stated, in brief, that on 16.10.2003 he was posted at P.S Chanakya Puri. He alongwith investigating officer Satbir Singh had gone to PBG line. There Major Rajiv Bansal, Technical Officer met them. The military vehicle was seized vide memo Ex.PW 17/A and photocopy of movement register was seized by police vide memo Ex.PW 10/A. PW18 is Constable Satpal, who has stated that on 6.10.2003 he was posted as duty constable at RML hospital. After medical examination of accused Harpreet, the doctor handed over three pulandas with seal of CMO, RML hospital to him which, were handed over by him to the investigating officer and taken by the investigating officer into possession vide memo Ex.PW 12/DA.
PW19 is HC Kirodi Lal. He has stated that on 20.10.2003 he was posted as H.C at P.S Chanakya Puri and was working as MHC. On that day as per the directions of the investigating officer, he 44 handed over 16 sealed parcels and four sample seals to SI Satbir vide R.C No. 93/21 to deposit the same at FSL Malviya Nagar. After depositing the same, SI handed over receipt copy to him. During his possession, the seals were intact and were not tampered with.
PW20 is Constable Idrish Khan, who has stated that on 6.10.2003 he was posted as Constable in PS Chanakya Puri and was working as motorcycle rider on that day. The duty officer has handed over him copy of FIR to be handed over to the senior officers. He went to Patiala House Court, PHQ and DCP Office and handed over the copies of the FIR to ld. M.M, Dy. C.P, New Delhi Range, Distt. DCP and ACP. After handing over the copies of FIR, he returned back to the police station.
PW21 is Lt. Col. Rajiv Bansal, who has stated that on 16.10.2003 he was posted as Major in President's Body Guard Unit and was looking after the charge of Technical Officer. On that day he handed over the military vehicle No: 96 D 104744H Lorry 3 ton 4X4 GS Shaktiman to the investigating officer and investigating officer seized the same vide memo Ex.PW 17/A. The handing over and taking over memo was prepared by him and the copy of the same is Ex.PW 21/A. He also stated that he handed over photocopy 45 of the movement register of the vehicle to the investigating officer, copy of the same is Ex.PW 10/A. On 14.11.2003 he sent a letter regarding the bonafide military duty of the accused persons on the day of incident i.e on 6.10.2003. The letter is Ex.PW 21/B. He also stated that letter Ex.PW 21/C bears the signatures of Major B.P Singh at point A. PW22 is SI Naresh Kumar, who has stated that on 8.10.2003 he was posted as Incharge Crime Team, PS Parliament Street. On that day, they inspected the spot. One blood stained handkerchief was found at the spot and one button covered with a piece of cloth having flower on it was also lying there. One toy in the shape of a man was also lying there. Some hair were also stuck on the handkerchief and some hair were lying at the spot. He collected all the articles and handed over the same to the investigating officer, who seized the same vide memo Ex.PW 12/A. PW23 is SI Satbir Singh who stated, in brief, that on 6.10.2003 he was posted at P.S Chanakya Puri. On that day, he alongwith HC Deep Kumar, Constable Sarup Chand, Constable Raghu Raj, Constable Raman Kumar, Constable Vasant Kumar, Constable Charanjit and other staff was present at Budha Jayanti 46 Park and they were deputed for maintaining law and order for the assembly of Dalai Lama and their followers. At about 11.00 a.m, one boy namely Ashish came to Constable Raghu Raj and told him that four persons had dragged his girl friend inside the jungle and they were in military uniform and one of them was Sardar. Constable Raghuram came to him and informed about the facts. He inquired from Ashish, who told that his girl friend was dragged inside the jungle of Budha garden by four military persons, out of which one was Sardar. He further told him that Rs. 100/- was snatched from him by that Sardar. He immediately went inside the jungle alongwith his staff and Ashish and they searched inside. After some time, they saw a girl coming from inside the jungle. She was weeping. Ashish identified the girl and stated that she was his girl friend. On inquiry, the prosecutrix disclosed her name. She informed that she was dragged by four persons inside the jungle. The military vehicle was with them and she was raped by two of the said army men and one was Sardar and the other one was a fat person. She also told him Rs. 120/- was snatched from her purse by the Sardar, who dragged her. Thereafter, they reached at Ghoda Maidan, where they found one office. The door of that office was close. Then he asked inmate 47 of the said office, if any, to come out from the said room. Thereafter one Sardarji came out from the said room. He was identified by Ashish and prosecutrix as one of the four military persons. The prosecutrix told him that she was dragged by said Sardar and Rs.120/- was snatched by him from her purse. On inquiry, said Sardar disclosed his name as Harpreet Singh. Ashish also told him that Rs. 100/- was snatched by said Sardar from him. Thereafter he interrogated him. Accused Harpreet confessed the commission of rape with the girl. The witness stated that immediately he informed the facts to his seniors and thereafter Inspector Laxmi Kanwat came to the spot. In the presence of Inspector Laxmi Kanwat, he recorded the statement of prosecutrix and gave his endorsement vide memo Ex.PW23/A and handed over the rukka to Constable Raghuraj for registration of FIR. Constable Raghuraj went to the PS and after getting registration of FIR, came back at the spot with copy of FIR and original rukka and handed them over to Inspector Laxmi Kanwat. Thereafter, accused Harpreet took the police inside the jungle but he could not point out the spot where the rape was committed upon the prosecutrix. After brief interrogation, accused Harpreet Singh was arrested and his personal search was conducted vide memo Ex.PW 48 12/A. Disclosure statement of accused Harpreet Singh was recorded which is Ex.PW 12/B. Thereafter, Ashish took the police team to the spot where the prosecutrix was abducted by the four military persons/accused persons. Investigating officer prepared site plan at the instance of Ashish. Investigating officer accompanied the prosecutrix to Lady Harding Medical College for medical examination. The witness stated that he alongwith Constable Raghu Raj went to RML hospital. After medical examination, doctor handed over to him 4 sealed pulandas and one sample seal, which he seized vide memo Ex.PW 12/DA.
Thereafter, he returned back to PS and handed over the pulanda, seizure memos and statements to the investigating officer . Accused Harpreet was kept in lockup. Investigating officer sealed the suit salwar and chunni of the prosecutrix in a pulanda with the seal of SS and seized the same vide memo Ex.PW/23/B. Thereafter, they went to PBG Line and investigating officer moved an application to Assistant Commandar of PBG line to interrogate Satender, Manish and Kuldeep. The Commandar handed over these three accused persons to the investigating officer and accused Harpreet identified three co-accused persons. They 49 were also interrogated separately. Personal search of all the three accused persons was conducted vide memo Ex.PW 12/C to Ex.PW 12/E. They were interrogated thoroughly and their disclosure statements were recorded vide memo Ex.PW 12/F to Ex.PW 12/H. On the personal search of accused Satender, cash of Rs. 220/- was recovered. Accused Satender told the investigating officer that Rs. 220/- were the same money which was handed over by accused Harpreet Singh on the day of incident. Investigating officer prepared a pulanda and kept the money inside and seized it vide memo Ex.PW 12/J. The three accused persons handed over their uniforms and told that they were wearing the same on the day of incident. The investigating officer seized the uniforms of accused persons vide memos Ex.PW 25/C to 25/E. The witness also stated that accused Satender took the police team to the spot where he alongwith his co accused persons had committed rape upon the prosecutrix. Investigating officer prepared pointing out memo Ex.PW 23/F. At the spot, they found one handkerchief, one cartoon like toy and one button lying on the spot. These articles were seized vide memo Ex.PW 12/K. The witness also testified that military vehicle/lorry was seized vide memo 50 Ex.PW 17/A and handing over and taking over memo was also prepared being memo Ex.PW 21/A. The witness also stated that he accompanied the investigating officer on 17.10.2003 to Tihar Jail for TIP of accused persons. He identified one button and cartoon toy as Ex.P6 and P7, the handkerchief as Ex.P5, salwar, suit and chhunni as Ex.P1 to P3. He also identified two currency notes of Rs. 100/- denomination and one currency note of Rs. 20/- denomination which were collectively seized vide memo Ex.PW 23/P1. The witness also identified the military uniform i.e pant and shirt recovered from accused Satender as Ex.PW 23/P2 and P3. He also identified one military dress and cloth piece as Ex.PW 23/P2 and P3.
PW24 is H.C Jitender Singh who has stated that on 17.10.2003 after TIP of accused persons, the prosecutrix handed over to investigating officer one Kurta without one button which was seized vide memo Ex.PW 24/A. The witness identified the kurta as Ex.PW24/P1.
PW25 is Inspector Lakshmi, CAW Cell, the investigating officer of the case, who proved various steps taken by her during investigation of the case. She has stated, in brief, that on 6.10.2003 she was posted as Inspector at CAW Cell New Delhi. On receipt of 51 message from control room, she reached Budha Garden. With the help of constable present there, she reached the spot where prosecutrix alongwith police officials including SI Satbir were present. They all were present near PBG Club, Ghoda Maidan. SI Satbir recorded the statement of prosecutrix and she had also put her signatures over the same at point C on the statement Ex.PW2/A. Rukka was handed over to Constable Raghuraj for getting the case registered. After registration of FIR, investigation of the case was assigned to her. She made inquiries from prosecutrix regarding the place of incident but she was not in a condition to tell the place of incident.
She corroborated with the statement of PW12 Constable Raghu Raj regarding arrest of accused Harpreet and conducting of his personal search vide memo Ex.PW 12/A and recording of his disclosure statement Ex.PW12/B. She proved site plan of the place of kidnapping at the pointing out of Ashish as Ex.PW 25/A. She corroborated with the statement of PW11 Constable Ram Kumar regarding handing over of four pulandas alongwith sample seal vide memo Ex.PW 11/A after medical examination of the prosecutrix . She corroborated with the statement of PW23 SI Satbir Singh 52 regarding seizure of clothes of the prosecutrix vide memo Ex.PW 23/B. She stated that accused Harpreet Singh was taken out of the lockup on the next date. He was produced in the court and one day police remand was taken. Accused Harpreet Singh led the police party to forest/jungle, but he did not get recovered the uniform and underwear and also did not take the police party to the place of incident. He was taken to PBG line for arrest of his associates. The witness stated that she handed over one letter to Assistant Commissioner Sh. B.P Singh, who produced accused Manish, Kuldeep and Satender who were identified by accused Harpreet Singh. They were arrested and their personal search was conducted vide memos Ex.PW12/C, D and E. On personal search of accused Satender, Rs. 220/- was recovered from his pocket which was snatched from prosecutrix and Ashish and the same was seized vide memo Ex.PW 12/J. The disclosure statements Ex.PW 12/F, G and H of accused persons were recorded. The three accused persons handed over their uniforms and shoes which were seized vide memos Ex.PW 25/C to Ex.PW25/E. The witness stated that the accused persons except 53 accused Harpreet were kept in muffled face and were produced before the court. Prior to their production before the court, they were taken to Budha Garden forest where accused Satender and Harpreet pointed out the place of incident vide memo Ex.PW 23/F. One handkerchief, one plastic toy, one button of green/moongia colour having flower on it were found at the spot which were seized by her vide memo Ex.PW 12/K. The witness stated that she prepared rough site plan of the spot which is Ex.PW 25/B. Accused Harpreet got recovered uniform from the bushes near Ghoda Madain which was seized vide memo Ex.PW 12/L. The witness stated that on 9.10.2003 she went to Tihar Jail for getting TIP of accused persons conducted. The date was adjourned for 17.10.2003. On 17.10.2003 TIP of accused persons was got conducted by ld. M.M. The prosecutrix disclosed that the button recovered from the spot was of her suit. The witness identified the suit of the prosecutrix vide memo Ex.PW 24/P1. The witness stated that she got prepared the scaled site plan from Inspector Devender on 21.10.2003. Subsequently, she collected FSL reports Ex.PW 4/A and B. The vehicle was seized by SI Satbir. After completion of investigation, challan was prepared. 54
The witness identified the case property. She identified one button and one cartoon toy as Ex.P6 and P7, one salwar, suit and chunni as Ex.P1 to P3, one Rs. 20/- currency note and two hundred rupees currency notes as Ex.PW 23/P1, military uniform as Ex.PW 23/P2 and P3, military uniform pant, shirt and cloth pieces as Ex.PW 23/P4,P5 and P6 and kurta as Ex.PW 24/P1.
STATEMENT AND DEFENCE OF ACCUSED PERSONS:
In the statements u/s 313 Cr.P.C of the accused persons recorded by the court, they have either denied the incriminating evidence, emerging from the prosecution case, put to them or have pleaded ignorance about them. All the accused persons have also stated that the witnesses have deposed falsely as they were interested being police officials. They have stated that it is a false case against them. The accused persons have stated that they were innocent and have been falsely implicated in this case.
Accused Harpreet Singh has also stated that on the day of incident, he was not deputed for kachra duty and he never accompanied the vehicle. Accused Satender has stated that the 55 records have been manufactured and fabricated by the prosecution to suit their case. Accused Manish has stated that the entire story as well as the evidence is concocted, fabricated, manipulated and created with a view to falsely implicate him. He stated that he was performing his duty at MT Garage under PBG line at the relevant time, he had not committed any offence and he was innocent.
Accused Kuldeep has stated that he has not committed any offence.
As a matter of fact, he was not even present at Ghoda Maidan at the relevant time and he was on duty at PBG Lines.
In support of his case, accused Satender examined DW1 Paramjeet Singh, who brought the summoned record of register of President's Body Guards i.e vehicle In and Out register. The entires regarding In and Out of vehicles on 6.10.2003 were found mentioned on page Nos. 131 and 132 of register. He proved the copy of page No. 132 of this Register as Ex.DW1/PA. He stated that the register is having printed columns consisting serial numbers from 1 to 18 on each page. He admitted that in none of the pages except for the page dated 6.10.2003, there is column No.19. He admitted that it was correct that only column No.19 finds mention in page no. 131 dated 6.10.2003. After examining DW1, accused Satender closed his 56 evidence. Other accused persons did not lead any evidence in defence.
ARGUMENTS AND FINDINGS:
I have heard the learned Additional Public Prosecutor for the State, the learned counsel for accused Harpreet and Satinder, the learned counsel for accused Kuldeep, the learned counsel for accused Munesh and have gone through the record of the case, relevant provisions of law and the relevant authorities carefully. For the sake of convenience and clarity the different issues involved in the case on which arguments were addressed for consideration and decision are separately dealt with under different headings TEST IDENTIFICATION PROCEEDINGS One accused Harpreet was arrested soon after the incident near the spot and was identified by the prosecutrix and the public witness Ashish before whom he was arrested. Therefore, there was no need for any Test Identification Proceedings for accused Harpreet. The prosecution case is that during investigation the Test 57 Identification Proceedings of the other three accused persons was got conducted. The prosecutrix identified the three accused persons Kuldeep, Munesh and Satinder before learned Metropolitan Magistrate who conducted the said proceedings in Tihar jail . The witness Ashish could not identify the three accused persons and has in the statement recorded before the court alleged that he was threatened not to identify them, so out of fear he did not identify them. However, he had identified the accused persons during his statement recorded in the court.
The contention on behalf of the accused persons is that proper precautions were not taken by the learned Metropolitan Magistrate during Test Identification Proceedings and even the investigating officer was present there so the Test Identification Proceedings conducted by the learned Metropolitan magistrate have no value without which the identification of the accused persons in the court by the witness Ashish and the prosecutrix is also of no use.
The learned Additional Public Prosecutor has strongly objected to this contention strongly and it is urged that the identification of accused persons by the witnesses in the court is the substantive piece of evidence and not in the Test Identification 58 Proceedings which are conducted during investigation of the case.
Before examining the respective contentions raised on behalf of the parties, it would be proper to have a glimpse of the settled legal position with regard to the value of Test Identification Proceedings of the accused.
In Md. Kalam @ Abdul Kalam v. State of Rajasthan, 2008(2) R.C.R.(Criminal) 631S.C. : 2008 A.I.R. (SC) 1813 : 2008 Cri.L.J. 2602 it was observed:
"7. As was observed by this Court in Matru v.
State of U.P., (1971(2) SCC 75) identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. (See Santokh Singh v. Izhar Hussain, (1973(2) SCC
406). The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the 59 investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Evidence Act. It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.
8. It is trite to say that the substantive evidence is the evidence of identification in Court. Apart from the clear provisions of Section 9 of the Indian Evidence Act, 1872 (in short the 'Evidence Act') the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the 60 form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad v. Delhi Administration, (AIR 1958 SC 350), Vaikuntam Chandrappa and others v. State of Andhra Pradesh, (AIR 1960 SC 1340), Budhsen and another v. State of U.P., (AIR 1970 SC 1321) and Rameshwar Singh v. State of Jammu and Kashmir, (AIR 1972 SC 102)."
In the backdrop of the above legal position with regard to Test Identification Proceedings conducted during investigation of the case it is clear that substantive evidence is the identification of the accused by the witnesses in the court and the Test Identification Proceedings conducted during investigation are only to lend 61 assurance to the investigating agency that the right person is arrested as accused and also to know whether the witness is able to identify the accused.
The learned Metropolitan Magistrate who conducted Test Identification Proceedings has proved the said proceedings in respect of accused Kuldeep as Ex PW6/B and in respect of accused Satinder Singh as Ex.PW 6/F and in respect of accused Munesh Kumar as Ex PW 6/E. These proceedings show that proper precautions were taken by the learned Metropolitan magistrate for conducting the Test Identification Proceedings of the three accused persons. The prosecutrix has identified the three accused persons correctly but the prosecution witness Ashish failed to identify them. But he had identified the accused persons in his statement before the court which is substantive piece of evidence. PW8 Ashish has stated in the Examination-in-chief that on 17/10/2003 he himself, the prosecutrix and her father came to the jail in auto for TIP. By that time the IO had not come. The prosecutrix and her father went inside the gate and he was standing outside the gate. At that time 5/6 persons came and asked his name politely. He told them his name. Then these persons asked whether he had come in Budha garden case for TIP, he 62 answered in the affirmative. Then they threatened, if he identified anybody in the TIP then they will kill him and then directed him to go inside the jail. The witness stated that he was frightened so he did not tell anything to the IO. Then he went inside for Test Identification Proceedings and did not identify anybody and on the pretext of headache returned straight to his house. From there, out of fear, he went to his village Shah Jahanpur. If the statement of this witness is believed the reason for his not identifying the three accused persons in the TIP proceedings is obvious and stood explained by him . Therefore, the identification of the accused persons in the court, which is a substantive piece of evidence, cannot be discarded on account of his inability to identify the accused persons in the said proceedings conducted during investigation of the case, in jail.
Be that as it may, even if the contentions raised on behalf of the accused persons are taken as true, that the Test Identification Proceedings were defective or ineffective, then at the most a defective Test Identification Proceedings can be equated with no Test Identification Proceedings of accused during investigation. The legal position in such a situation is also not altogether bad for the prosecution to disbelieve its case.
63
In this regard it would be worthwhile at this juncture to reproduce the decision in Malkhansingh v. State of Madhya Pradesh, 2003 Cri.L.J. 3535 S.C. : 2003(3) R.C.R.(Criminal) 550S.C. : 2003 A.I.R. (SC) 2669 of the three judges bench of Hon'ble Supreme Court wherein it was held as under:-
"15. It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is preceded by a test identification parade, is a matter for the courts of fact to examine. In the instant case the courts below have concurrently found the evidence of the prosecutrix to be reliable and, therefore, there was no need for the corroboration of her evidence in court as she was found to be implicitly reliable. We find no error in the reasoning of the courts below. From the facts of the case it is quite apparent that the prosecutrix did not even know the appellants and did not make any effort to falsely implicate them by naming them at any stage. The crime was perperated in broad daylight. The prosecutrix had sufficient opportunity to observe the features of the appellants who raped her one after the other. Before the rape was committed, she was threatened and intimidated by the appellants. After the rape was committed, she was again threatened and intimidated by them. All this must 64 have taken time. This is not a case where the identifying witness had only a fleeting glimpse of the appellants on a dark night. She also had a reason to remember their faces as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their features. In fact on account of her traumatic and tragic experience, the faces of the appellants must have got imprinted in her memory, and there was no chance of her making a mistake about their identity. The occurrence took place on March 4, 1992 and she deposed in Court in August 27, 1992. The prosecutrix appears to be a witness on whom implicit reliance can be placed and there is no reason why she should falsely identify the appellants as the perpetrators of the crime if they had not actually committed the offence. In these circumstances if the courts below have concurrently held that the identification of the appellants by the prosecutrix in court does not require further corroboration, we find no reason to interfere with the finding recorded by the courts below after an appreciation of the evidence on record."
In the present case the prosecutrix has identified all the accused persons in the court and also the three accused persons for whom Test Identification Proceedings were conducted in jail before learned Metropolitan Magistrate. She even had fair opportunity to note features of all four accused persons as she was for enough time with the four accused persons to identify them while they kidnapped her and was also with accused Satender and Harpreet who 65 committed rape on her . The other eyewitness PW8 who though is not eyewitness to the incident of rape is eyewitness to the offence of kidnapping of prosecutrix and robbery from him, though has not identified the three accused persons Munesh, Kuldeep and Satender in Test Identification Proceedings but has identified them in the court by giving specific reason as to why he did not identify the three accused persons in the said proceedings. One of the accused persons namely Harpreet was arrested outside room in 'Ghora maidan' near the spot on the date of incident in presence of the prosecutrix, PW8 Ashish and police officials, therefore, there was no need to subject him to the Test Identification Proceedings. Therefore, the identity of the accused persons and their presence at the spot is established by the prosecution beyond reasonable doubt in this case. VALUE OF THE STATEMENT OF THE PROSECUTRIX It is hardly possible that any self respecting woman would come forward in a court of justice to make a humiliating statement against her honour, such as is involved in rape on her, unless it is absolutely true. {See Labh Singh Vs. Emperor 24 CrLJ 877, AIR 66 1923 Lah 291} Therefore, the evidence of the prosecutrix should carry more weight than the evidence of an ordinary witness. {See Bhagwat Prakash Vs. State 1956 CrLJ 4, AIR 1956 All 22}.
Undoubtedly, prosecutrix cannot be considered to be an accomplice; her testimony cannot be equated with that of an accomplice. {See Gurcharan Singh Vs. State of Haryana 1973 CrLJ 179, AIR 1972 SC 2661; Rameshwar Vs. State of Rajashthan AIR 1952 SC 54; Sidheswar Ganguly Vs. State of West Bengal AIR 1958 SC 143, 1958 CrLP 273; State of Maharashtra Vs. Chandraprakash Kewalchand Jain AIR 1990 SC 658, 1990 CrLJ 889 (SC)} Similarly, there is no rule of law which may require that there should be corroboration before conviction can be based on the sole testimony of the prosecutrix. {See Gurcharan Singh Vs. State of Haryana, AIR 1972 SC 2661; Sitaram Vs. State of Maharashtra 1974 CrLJ 82, p 84 ; Rafiq Vs. State (1980) 4 SCC 262, p 265, 1980 SCC 947 (Cr); Rameshwar Vs. State of Rajasthan AIR 1952 SC 54, 1952 CrLJ 547; Satoakalias Satnam Singh Vs. State of Rajasthan 2001 CrLJ 564 (Raj) } The prosecutrix should be treated as an injured witness. { See Satendra Kumar Kushwaha Vs. State 67 of Bihar 2003 CrLJ 392 (Pat)} Corroboration is not the sine qua non for a conviction in a rape case. In the initial setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration, as a rule is adding insult to injury. Why should the evidence of the woman who complains of rape/sexual molestation be viewed with doubt, disbelief or suspicion? To do so would justify the charge of male chauvinism in a male dominated society. {See Bharoada Bhoginbai Hirjibha Vs. State of Gujarat AIR 1983 SC 753, 1983 CrLJ 1096 (SC)} To insist on corroboration except in the rarest of rare case is to equate a woman who is a victim of lust of another, with an accomplice to a crime, and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissible society as in some of the Western and European countries. Our standard of decency and morality, in public life is not the same as in those countries. Decency and morality in public life can be promoted and 68 protected only if the courts deal strictly with those who violate societal norms. The standard of proof to be expected by the court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely a direct evidence of a person other than the prosecutrix is available. Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by leveling a false charge concerning her chastity. {See State of Maharashtra Vs. Chandra Prakash Kewalchand Jain AIR 1990 SC 658, 1990 CrLJ 889 (SC); State of Himachal Pradesh Vs. Lekh Raj & Anor 2000 CrLJ 44 (SC)} It is open to the court to base conviction solely on the evidence of the prosecutrix, if it is satisfied that the evidence is worthy of credence. { See Motiram Krishnmao Vs. State of Madhya Pradesh 1955 CrLJ 819, AIR 1955 Nag 121; Kishanlal Vs. State of Haryana (1980) 3 SCC 159, AIR 1980 SC 1252; Narayana Dutta Vs. State 1980 CrLJ 264, p 265 (Cal) (DB); Satendra Kumar Singh Kushwaha Vs. State of Bihar 2003 CrLJ 392 (Pat) } About legal aspect with respect to appreciation of evidence of prosecutrix, the same can be summarised in the following manner: 69
(1) That the main evidence in all such cases is that of victim herself.
(2) That corroboration of the testimony of the prosecutrix in rape case is not required as a rule of law. But, corroboration should ordinarily be required in the case of a woman having attained majority and who is habitual to sexual intercourse and is found in a compromising position, as in such cases there is likelihood of her having levelled such an accusation on account of instinct of self preservation or when the probabilities factor is found to be out of time.
(3) That corroboration may be by facts and circumstances.
(4) That the injury on the person of the victim, especially her private parts, had corroborative value.
(5) That if the evidence of the victim does not suffer from any basic infirmity and the probabilities factor does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. { See Jogi Dan Vs. State of Rajasthan 2004 70 CrLJ 1726 (Raj)} In the light of the of the above legal position with regard to the evidence of the prosecutrix, the evidence of the prosecutrix in the present case is to be appreciated. In the present case the prosecutrix not only has identified the three accused persons in the Test Identification Proceedings and one of the accused Harpreet was arrested in her presence by the police, soon after the incident, from the room in 'ghora' maidan near the spot, but also, she has identified all the four accused persons in the court. She has identified to accused persons Harpreet and Satinder who committed rape on her in turn. There is no evidence of enmity between the prosecutrix or her family members with the accused persons. The fact that out of the four accused persons she has identified the two and not all four accused who have committed rape on her also shows the truthfulness in her statement. Therefore, this star witness of the prosecution deserves to be believed.
Several minor contradictions are pointed out in the statement of prosecutrix PW2 and PW8 Ashish and some official witnesses in the lengthy arguments addressed on behalf of the accused persons. But in the light of the fact that if unduly long cross- 71 examination of the witnesses is done, there is bound to be contradictions of different kinds which need to be ignored.
In Sukhdev Yadav v.State of Bihar AIR 2001 SC 3678, it was held that minor variations may be there when witnesses give detailed account but if on a perusal of the evidence in its entirety, it appears to be otherwise trustworthy, question of the evidence being non-trustworthy would not arise. It was further observed as follows:
"It is now well settled that the Court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. The evidence is to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of the Court to accept the stated evidence. This Court in Leela Ram (dead) through Duli Chand v. State of Haryana (1999) 9 SCC 525 :
1999 AIR SCW 3756 : AIR 1999 SC 3717, relying upon an earlier decision of this Court in State of U.P. v. M. K. Anthony (1985) 1 SCC 505 : AIR 1985 SC 48: 1985 Cri LJ 493 observed :
"......There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reasons therefor 72 should not render the evidence of eye-witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence."
It was further observed:
In Rammi v. State of M. P. (1999) 8 SCC 649, this Court further observed : 1999 AIR SCW 3546: AIR 1999 SC 3544: 1999 Cri LJ 4561 "24. When an eye-witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details.
Perhaps an untrue witness who is well tutored can successfully make his testimony totally non- discrepant. But Courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny."
This Court went on to state (SCC pp. 656-57, paras 25-27):
"25. It is a common practice in trial Courts to make out contradictions from the previous statement of a witness for confronting him during cross-examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt S. 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the 73 section is extracted below :
'155, Impeaching credit of witness.-The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him-
(1) and (2) (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted:'
26. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be 'contradicted' would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross examiner to use any former statement of the witness, but it cautions that if it is intended to 'contradict' the witness the cross-examiner is enjoined to comply with the formality prescribed therein. Section 162 of Code also permits the cross-examiner to use the previous statement of the witness (recorded under S. 161 of the Code) for the only limited purpose i.e. to 'contradict' the witness.
To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness (vide Tahsildar Singh v. State of U.P., AIR 1959 SC 1012.""
The Court held as follows:
"15. True, as noticed above there are lapses, but the question that arises for consideration is whether any prejudice has been caused by reason of such a lapse, if the answer thereto is in 74 the affirmative obviously it will have a serious impact on to the trial but if in the event however, it is on the negative, no prejudice can be said to have been caused and correspondingly question of the trial being vitiated would not arise. The eye-witnesses account as available on record cannot but be termed to be trustworthy and by reason therefor, the lapses stand over-shadowed by the testimony of the eye-witnesses. The observations above obtain support from the decision of this Court in Baleshwar Mandal v. State of Bihar, AIR 1997 SC 3471."
In the present case PW2 the prosecutrix, PW 8 Ashish and some police witnesses were subjected to unduly long cross- examination on behalf of accused persons so there were bound to be contradictions which occurred in their detailed cross-examination. In the light of the above legal position explained by Hon'ble Supreme Court neither the prosecutrix nor PW8 Ashish and other prosecution witnesses could be disbelieved on account of minor contradictions occurring in their detailed cross-examination. MEDICAL AND FORENSIC SCIENCE EVIDENCE:-
PW 1 Doctor Monica Hooda, Senior Resident in 75 Gynaecology Department, Lady Harding Hospital, New Delhi who examined the prosecutrix medically and confirmed rape on the prosecutrix. She proved her report Ex PW1/A. PW3 is Doctor Beena Mahajan, Chief Medical Officer, Doctor Ram Manohar Lohia Hospital, New Delhi. He medically examined accused Satinder Singh and proved his MLC PW3/A and gave opinion that there was nothing to suggest that the said accused was not able to perform sexual intercourse. The same is the opinion of PW5 Doctor Pradeep Saxena who examined accused Harpreet Singh and proved his MLC Ex PW5/A. PW4 Doctor AK Shrivastava, Senior Scientific Officer, Biology Department, FSL Delhi has proved FSL report Ex PW4/A, the result of analysis shows the blood was detected on high vaginal swab, many strands of brownish hair smeared with blood, one underwear of the prosecutrix having darker stains, one salwar of the prosecutrix having stiffly brown stains, one ladies Shirt having stiffly brown stains, blood sample of accused Harpreet Singh, and one handkerchief of the prosecutrix having brownish stains. He also proved the biology report using various serological techniques and 76 the result obtained were that vaginal swab, hair, underwear, salwar, Lady's shirt, handkerchief had origin of human species of 'B' Group. In Nirmal Kumar's case and Bhupender's case, the Punjab and Haryana High Court has held that the blood and semen found on the clothes of the prosecutrix, and semen found on the pyjama of the accused are strong circumstance appearing against the accused. {See Bhupender alias Mohinder Singh Vs. State of Haryana 2002 CrLJ 1286 (P&H); Nirmal Kumar Vs. State of Haryana 2002 CrLJ 3352 (P&H)} It is to be noted that the blood sample of accused Harpreet and Satinder were taken but no opinion could be given at the FSL as the samples were putrefied. The investigating officer during investigation of the case made efforts for obtaining blood samples of these two accused persons before learned Metropolitan Magistrate, New Delhi by moving an application Ex PW7/A before the learned Metropolitan Magistrate. Accused Harpreet on 13/11/2003 refused to give his blood sample. Same was the reply of accused Satinder. The learned Metropolitan Magistrate warned them that their refusal may be considered against them during the trial but they insisted upon the 77 refusal to give the blood sample. Their statements were recorded by learned Metropolitan Magistrate in this regard. The proceedings conducted by learned Metropolitan Magistrate on 13/11/2003 are proved by him as a Ex PW7/B. No cross-examination of PW7 is conducted on behalf of either of the accused persons despite opportunity given for the same. Therefore, by unrebutted statement of the PW7 it is established that the the two accused persons voluntarily refused to give their blood sample. If they were innocent, why did they refuse to give their blood sample? Therefore, they are liable for adverse inference, that had they given the sample of blood for analysis it would have been found to be of 'B' Group. Therefore, the medical and forensic evidence proved by the prosecution supports its case.
RECOVERY OF INCRIMINATING ARTICLES The accused Harpreet was arrested on the date of incident, as already stated. On the next day he was produced in the court and one-day police remand of this accused was given to the investigating officer on the basis of the disclosure statement of the accused Ex PW 12/B.. Thereafter, accused Harpreet led the police 78 party to the forest/Jungle and got recovered his uniform and underwear but he did not take the police party to place of incident ,as stated by the investigating officer PW 25 Inspector Lakshmi.
The three accused, Kuldeep, Munesh and Satinder were arrested by police in consultation with superior military officer of these accused persons. The personal searches of these three accused persons conducted vide memos is Ex PW 12/C,D, and E. From the personal search of accused Satinder Rs. 220/-- in cash Ex PW 23/P1(colly) was recovered from his pocket and the same is stated to be the same amount which was snatched from the PW2 prosecutrix and PW8 Ashish. The disclosure statement of the three accused persons Ex PW 12/F, G and H were recorded. The uniform of these three accused persons was seized by the investigating officer vide memo Ex PW 25/C to E after preparing their sealed pulandas. Accused Satinder and Harpreet pointed out the place of incident vide pointing out memos Ex PW 23/F. One handkerchief Ex P5, one plastic toy, one button of green/moongia colour having flower over it Ex P6 and Ex P7 were found at the spot. These articles were seized by the IO vide memo Ex PW 12/K after preparing the sealed 79 pulandas. The crime team had collected some hair at the spot which were seized by the IO vide memo Ex PW 12/K. The uniform and shoes of accused Harpreet Ex.PW23/P4 to P6 were got recovered by him and were found in a polythene and the same were seized vide memo Ex PW 12/L. On 17/10/2003 when the Test Identification Proceedings of the three accused persons was got conducted, on that day, the prosecutrix disclosed to the investigating officer that the button recovered from the spot was of her suit. Therefore, the investigating officer seized the 'kurta' Ex PW24/P1of the prosecutrix ,with one missing button vide memo Ex PW 24/A. All the incriminating articles recovered at the instance of accused persons or otherwise,as referred before support the prosecution story. SITE PLANS Two site plans are prepared by the investigating officer. The first site plan Ex PW 25/A was prepared by the investigating officer on 6/10/2003 at the instance of PW8 Ashish showing the place from where the prosecutrix and PW8 Ashish were kidnapped/abducted. The other site plan prepared by the 80 investigating officer Ex PW 25/B depicts the place where the prosecutrix was relieved and the military men were standing and also the place from where the prosecutrix was kidnapped. PW 15 Inspectors Devender Singh draughtsman, crime Branch has proved the scaled of site plan Ex PW 15/A prepared by him on the request of investigating officer. The site plan also shows the place from where the prosecutrix was kidnapped and where she was raped and where the military vehicle was parked at or about the time of incident.
The contention of learned counsel for the accused persons is that the military truck left the PBG line at 10.55 5 AM and returned at 12.10 p.m. so the total time taken was 75 minutes and distance covered was 4 km only as per the record produced by the prosecution. His argument is that if conservative time in minutes is taken for different acts alleged to be done by accused persons, i.e., for reaching from PBG line to point B shown in the site plans as 15 minutes, time taken for kachara dropping 10 minutes, time taken for reaching from point B in the site plan to the place where prosecutrix and PW 8 Ashish were present 10 minutes, time taken for kidnapping and entering the Jungle five minutes, time taken for walking from 81 point A to point B shown in the site plan 10 minutes, time taken from point B to point C shown in the site plan where prosecutrix got up and down respectively from military vehicle (truck) by the accused persons 5 minutes, time taken for taking the prosecutrix to the place where rape was committed from point C to point D by walking (138 mts.) five minutes, rape committed by two accused persons with prosecutrix 15 minutes, cleaning up and throwing of handkerchief/threatening and slapping prosecutrix by alleged rapist accused persons five minutes, return of accused persons from point C to PBG line by truck 10 minutes. Therefore, time taken by the accused persons from going from PBG lines and return would come to 90 minutes while as per the in and out register produced by the prosecution 75 minutes were taken by accused persons so prosecution story is false and the accused persons have been falsely implicated in this case.
At the first blush, the above calculation as to the time done by the learned counsel for the accused looks to be attractive but, at a closer scrutiny of the contention, in my view, there is no way to calculate exactly the time taken for the different acts by the accused 82 persons. These things cannot be weighed in golden scale. Even the eye witness account cannot be so exact to give accurate time taken for these acts unless one has continuously crudely noted the time taken in writing on a piece of paper at the time these acts were being done. There is no such evidence so the reasonable and probable inference arising out of normal human behaviour in the matter dissudes me from accepting the above arguments of learned counsel for the accused .
There is another aspect to the matter also. The time in the official record regarding in and out of the military vehicle as per statement of PW10 Vidya Dhar Singh is recorded by accused Satinder in his hand. An accused who has kidnapped the prosecutrix, committed robbery and rape on the prosecutrix in such a situation cannot be supposed to give true and correct time of in and out of the military vehicle. Even if the military vehicle is returned after 90 minutes of departure due to the offences committed by accused persons, since the entry in this regard was made by accused Satinder himself the possibility that he gave a wrong entry of return of the vehicle by preponing the time in the register to show that the military vehicle returned in time, cannot be ruled out.
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Certain discrepancies are also pointed out on behalf of accused persons in the site plans relied upon by the prosecution, referred before. The basic law with regard to value of the site plan is described by Hon'ble Supreme Court in the following caselaw:
In State of UP v Babu AIR 2003 SC 3408, 2003(11) SCC 280, 2003 Cr LJ 4982 (SC) it was held:
" ......................... Great emphasis was laid by the High Court on the fact that in the site plan place where gaslight was found had not been indicated. The site plan is not substantive evidence. The High Court seems to have proceeded on the basis that omission to indicate the location of gaslight in the site plan was fatal. This Court in Shakti Patra and Anr v State of West Bengal (AIR 1981 SC 1217) held that where prosecution witness testified that he had identified the accused in the light of the torch held by him, the presence of torch would not be said to be not proved on the ground that there was no mention of the torch in the FIR or in the statement of the witness before the police, when there was testimony of other witnesses that when they reached the spot they found the torch burning. To similar effect is the conclusion in Aher Pitha Vajshi and Ors. v. State of Gujarat (AIR 1983 SC 599). It would be proper to take note of what was stated by this Court in George and Ors. v. State of Kerala and Anr., (1998(4) SCC 605 : 84 1998(2) RCR(Crl.) 199 (SC)) regarding statements contained in an inquest report. The statements contained in an inquest report, to the extent they relate to what the Investigating Officer saw and found are admissible but any statement made therein on the basis of what he heard from others, would be hit by Section 162 of Code of Criminal Procedure, 1973 (in short `Cr.P.C.'). The position is no different in case of site plan ."
In Surinder Singh v State of UP, AIR 2003 SC 3811, 2003(10) SCC 26, 2003 Cr LJ 4446 (SC) it was held:
"Merely because name of PW-2 did not appear at the site plan that does not render his presence at the place of occurrence improbable. As was held in Girish Yadav and others v. State of Madhya Pradesh (JT 1996(3) SC 615), the site plan is prepared on hearsay and is not to be read as evidence. Even otherwise, explanation has been given as to why the position from where PW-2 claimed to have been seen the occurrence was not noted in the site plan . The High Court has noticed this factor and in our view rightly."
In Anil v State of Haryana 2007(3) RCR (Criminal) 222 (SC), 2007 Cr LJ 4294 (SC), it was held:
" The site plan showed the material particulars. The place where the complainant was being assaulted has clearly been stated in the First Information Report as also in his deposition by 85 Rajpal. Almesh admittedly was inside the house. We, therefore, do not see any reason to throw out the prosecution case only on the ground that in the site plan the investigating officer had failed to pinpoint the place where the witnesses were standing at the time of occurrence."
In the light of the above viewpoints emerging from Hon' ble Supreme Court with regard to the site plan prepared during investigation by the investigating officer, it is clear that the site plan is not a substantive piece of evidence. Even if there are some discrepancies in it, the prosecution case cannot be thrown out on this count alone.
KIDNAPPING OF PROSECUTRIX The prosecution case is that on 6/10/2003 at about 11 AM in Buddha Garden the accused persons had kidnapped the prosecutrix for forcing her to illicit intercourse and they also abducted PW8 Ashish. PW 2 the prosecutrix has stated that accused Kuldeep and Satinder caught hold of her and accused Harpreet and Munesh caught Ashish. She stated that the two accused persons pulled her 86 for 5-10 minutes in the Jungle where a military vehicle was parked. In the meantime the other two accused who caught hold of Ashish came there and these four accused persons forcibly got her seated in the military vehicle and two of the accused sat in the front seat and two in the back seat.
PW8 Ashish has stated that accused Harpreet and Munesh caught hold of him on that day and accused Satinder and Kuldeep caught hold of the prosecutrix and they took them inside the park. He stated that he had at once given a jerk and rescued himself and ran towards the park where he informed the matter to the police officials on security duty of Dalai Lama.
Therefore, it is clear that the statement of prosecutrix PW 2 and her friend PW 8 Ashish is in complete corroboration as regards which of the two accused persons caught hold of the prosecutrix and which two caught the witness Ashish. The common intention of the accused persons was to kidnap the prosecutrix who has given her age as 17 years to the police and at the time of her medical 87 examination by PW 1 the Doctor Monika Hooda and so she was minor at the time of alleged commission of offences. The fact that four accused persons forced the prosecutrix to sit in the military vehicle also shows the common intention of the accused persons in kidnapping the prosecutrix for the purpose of forced illicit intercourse. Therefore, all the four accused persons are proved by the prosecution to be guilty of the charge under Section 366/34 IPC. ROBBERY WITH VOLUNTARILY CAUSING HURT In the present case two robberies are committed. PW8 Ashish has stated that he was caught by Harpreet and Munesh. He touched the feet of sardar (Harpreet) and asked him where he was being taken but he stated him to go straight quietly. Sardar took him ahead and slapped him and took out rupees hundred from his purse. Since, accused Harpreet slapped PW8 Ashish at the time of committing the robbery the offence under Section 394 IPC is attracted. As a the other three accused persons were jointly concerned in committing such a robbery and were with accused Harpreet with the common intention they are also equally liable for 88 this offence. Under Section 394, not only the person, who causes hurt, is liable, but also the persons, who were jointly concerned in committing or attempting to commit a robbery are made punishable which is obvious from the plain reading of this Section 394 IPC. Therefore, all four accused persons are also guilty of charge under Section 394/34 IPC which is aggravated form of a robbery defined in Section 390 IPC and made punishable under Section 392 IPC.
The second robbery was committed by accused Harpreet and Satinder after commission of rape on the prosecutrix. PW2, the prosecutrix has stated that after committing rape sardar (accused Harpreet) slapped her 2-3 times and took out rupees 120/-- from her purse. It is to be noted that at the time of commission of rape the other two accused persons Kuldeep and Munesh were not present at the place of alleged rape so these two accused persons cannot be held guilty for committing robbery by causing hurt to the prosecutrix and for this second robbery only accused Harpreet and Satinder are guilty under Section 394/34 IPC. Why the accused Kuldeep and Munesh are not guilty for the second robbery would also be clear from the discussion ahead on the question of gang rape . GANG RAPE 89 As already discussed, the accused persons kidnapped the prosecutrix for the purpose of illicit intercourse and forced her to sit in the military vehicle in question. The prosecutrix is the only witness of the alleged rape committed on her. She has stated that accused Harpreet and Satinder have committed rape on her. The argument on behalf of accused Munesh and accused Kuldeep is that they have neither committed rape on the prosecutrix nor can be held guilty of the offence of gang rape.
Before appreciating the evidence on record on this question, it would be appropriate to have a glance at the legal position as to the offence of gang rape as defined in clause (g) of Subsection (2) of Section 376 IPC.
In Pardeep Kumar v. Union Administration, Chandigarh, 2006(4) R.C.R.(Criminal) 34S.C. :: 2006 Cri.L.J. 3894 S.C.: 2006 A.I.R. (SC) 2992 it was held:
"10. To bring the offence of rape within the purview of Section 376(2)(g), IPC, read with Explanation 1 to this Section, it is necessary for the prosecution to prove :-90
(i) that more than one person had acted in concert with the common intention to commit rape on the victim ;
(ii) that more that one accused had acted in concert in commission of crime of rape with pre-
arranged plan, prior meeting of mind and with element of participation in action. Common intention would be action in concert in pre-
arranged plan or a plan formed suddenly at the time of commission of offence which is reflected by element of participation in action or by the proof of the fact of inaction when the action would be necessary. The prosecution would be required to prove pre-meeting of mind of accused persons prior to commission of offence of rape by substantial evidence or by circumstantial evidence; and
(iii) that in furtherance of such common intention one or more persons of the group actually committed offence of rape on victim or victims. Prosecution is not required to prove actual commission of rape by each and every accused forming group.
11. On proof of common intention of the group of persons which would be of more than one, to commit the offence of rape, actual act of rape by even one individual forming group, would fasten the guilt on other members of the group, although he or they have not committed rape on the victim or victims.
12. It is settled law that the common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. Direct proof of common intention is 91 seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances."
In Hanuman Prasad v. State of Rajasthan , 2009(1) R.C.R.(Criminal) 267 S.C. : 2009(1) S.C.C. 507 : 2008(15) Scale 106 relied upon by learned counsel for accused Munesh and learned counsel for accused Kuldeep the following observations were made by Hon'ble Apex Court:
"7. The important expression to attract Section 376(2)(g) is `common intention'. The essence of the liability in terms of Section 376(2) is the existence of common intention. In animating the accused to do the criminal act in furtherance of such intention, the principles of Section 34 IPC have clear application. In order to bring in the concept of common intention it is to be established that there was simultaneously consensus of the minds of the persons participating in the act to bring about a particular result. Common intention is not the same or similar intention. It presupposes a prior meeting and pre-arranged plan. In other words, there must be a prior meeting of minds. It is not necessary that pre-consert in the sense of a distinct previous plan is necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons which has to be gauzed on the facts and circumstances of each case."92
From the above legal position which emerges from Pradeep Kumar's case (supra) and Hanuman Prasad's case (supra) it is clear that gang rape can be committed by more than one person and it is not necessary that each and every member of the gang should have raped the prosecutrix. What really matters is the common intention of all the members of the gang to commit rape on the prosecutrix. Therefore, in the light of specific allegation made by the prosecutrix against accused Harpreet and Satinder that they have committed rape on her in turn and in the light of the value and credibility of the statement of the prosecutrix as discussed under the heading "VALUE OF THE STATEMENT OF THE PROSECUTRIX"
coupled with the incriminating articles recovered at the instance of the accused persons or otherwise from the spot, as referred before there is no manner of doubt that both accused Harpreet and Satinder are approved by the prosecution to be guilty of the offence under Section 376 (2) (g) of the Indian Penal Code. More so when seen after the said rape she has narrated the incident to police officials, PW12 Ct.
Raghu Raj Singh, PW23 SI Satbir Singh, PW25 Inspector Laxmi, and PW1 Dr. Monica Hooda who have made statements to the effect 93 corroborating the statement of prosecutrix. The statement of the three police officials and PW1 Dr. Monica Hooda and PW8 Aashish is relevant under Sections 6,7 and 8 of the Indian Evidence Act.
The next logical question is whether accused Kuldeep and Munesh are also guilty of the said offence of gang rape?
Undisputedly they have not committed rape on the prosecutrix. In her statement Ex PW2/A she has only levelled allegations of rape against accused Harpreet and accused Satinder and regarding the other two accused Kuldeep and Munesh she has stated that they had left with the vehicle. But in the supplementary statement dated 17/10/2003 recorded by the investigating officer she has improved the version regarding these two accused Kuldeep and Munesh and has stated that they were guarding the place at the time of commission of rape.
She in her statement as PW2 has stated in the Examination-in-chief that when the two accused were taking her by pulling her the other two accused who were standing near the vehicle stated to them to come early after finishing the work and they were guarding by remaining there. The question arises is what is the credibility of the improvements made by her in her statement as the fact that the other 94 two accused persons Kuldeep and Munesh were guarding the place is completely missing in the FI R lodged by her? The improvements in the statement made by the witness either during investigation by giving supplementary statement to the investigating officer or by statement made in the court is looked upon with suspicion by the higher courts to discard the said improvements in the statement of witness. This is clear from the following case law under various circumstances:
In Kehar Singh and ors. v. The State (Delhi Admn.) AIR 1988 SC 1883, the Apex Court has observed as follows:
"70. It could not be doubted that the two versions given out by this witness are not such which could easily be reconciled. In fact in his first version there is nothing against Balbir Singh. In this second statement he has tried to introduce things against him. This apparently is a clear improvement. It is wellsettled that even delay is said to be dangerous and if a person who is an important witness does not open his mouth for a long time his evidence is always looked with suspicion but here we have a witness who even after 25 days gave his first statement and said nothing against the present accused and then even waited for one more month and then he suddenly chose to come out with the allegations against this accused. In our 95 opinion, therefore, such a witness could not be relied upon and even the High Court felt that it would not be safe to rely on the testimony of such a witness alone."
In Babu Singh & Ors. v. State of MP III (1997) CCR 182 (MP), the Madhya Pradesh High Court observed as follows:
"14. ...............All this indicates that the story about the demand of dowry and harassment as also the incident of beating has been subsequently introduced as an after-thought, otherwise there was no reason why the parents of the deceased would not unfold the same at the very first opportunity, especially when v.C. Verma, S.D.O. (Police) (PW 7), who conducted investigation, has admitted that both were present. It is, therefore, difficult to hold on the basis of such shaky evidence that any of the appellants had abetted the commission of suicide by the deceased."
In Ramesh Bhandari v. Charan Dass Puri and others 50 (1993) DLT 81, it was observed by the Delhi High Court:
"3. ...............It is a case in which apparently earlier statements, although not strictly under Section 161 of the Code do not inculpate the respondent whereas the later statements made after 6-7 days to inculpate them. Even if the statements made at the time of inquest are strictly not in investigation, it is not possible also to ignore them since they are quite detailed and in any case admittedly are in the 96 nature of previous statements of the closest relations of the deceased."
In Onkar Nath Mishra v. State (NCT of Delhi) 2008 [1] JCC 65 (SC), the Hon'ble Supreme Court held as follows:
"19. As regards the applicability of Section 498A IPC, in the complaint dated 8.11.1994 there is not even a whisper of a wilful conduct of appellants No. l and 2 of harassment of the complainant at their hands with a view to coercing her to meet any unlawful demand by them so as to attract the provisions of Section 498A read with Explanation thereto. The com- plaint refers to the talk the complainant purports to have had with her husband, appellant No. 3, who is alleged to have told her to come to Bijnore if she apologizes to his father; keeps him happy; obeys his sister and talks to her father (complainant's) to give her Rs. 50,000/- and VCR and brings these articles to Bijnore. We are convinced that the allegation of misbeheviour on the part of appellant Nos. 1 and 2 and the demand of Rs. 50,000/- and VCR by them made by the complainant in her subsequent statement, dated 4.4.1995, was an after thought and not bona fide. Section 498A IPC was introduced with the avowed object to combat the menace of dowry deaths and harassment to a woman at the hands of her husband or his relatives. Nevertheless, the provision should not be used as a device to achieve oblique motives. Having carefully glanced through the complaint, the FIR and the charge-sheet, we find that charge under Section 498A IPC is not brought home insofar 97 as appellant Nos.1 and 2 are concerned."
In Budhan Singh & Ors v. State (Through N.C.T. of Delhi) 2008 [2] JCC 1017 (Del), it was observed as follows:
"5. It is further urged by learned counsel for the petitioners that initially investigation carried out by the investigators indicated that Tikam Singh died due to heart attack and in this regard he has drawn my attention to the statement of Gyan Singh, Ramesh and Daya Chand which was recorded by the investigators initially. In support of such contention learned counsel for the petitioners has placed on reliance a judgment reported in 2004(3) JCC 1754 where this court observed that a complaint, on the basis of which the complainant seeks registration of an FIR, must disclose essential ingredients of offence and in case a complaint lacks or is wanting in any of the essential ingredients, the lacuna or deficiency cannot be filled up by obtaining additional complaint or supplementary statement and thereafter proceed to register the FIR. If such a course is permitted, it would give undue latitude as well as opportunity to unscrupulous complainants to nail others by hook or by crook in spite of the fact that their initial complaint does not make out the offense complained of.
6. In the case in hand also investigation carried out by the investigators completely 98 exonerated the petitioners but belated FIR lodged at the instance of the wife should not be taken into consideration as it seems to have been made with a view to fill up the lacuna in the investigation made earlier."
In Rajender Singh Sachdeva v. State (NCT of Delhi) 2008 [2] JCC 979 (Del), it was observed as follows:
"13. If these and the other surrounding circumstances are taken into consideration the complaint of the petitioner appears to be well founded. According to the complaint, the incident in which the petitioner was involved occurred some time in April-May 1988 i.e, 16 years before the complaint. He was not named in the FIR. That incident is also absent in the first report documented during the investigation i.e, a complaint to the Assistant Labour Commissioner. The allegations against the petitioner surfaced only during the statement under Section 161. Interestingly he was named in that. The third statement was recorded on 21.05.2004. In the meanwhile, the petitioner was arrested on 18.05.2004. One does not find any logic as to the recording of the second statement under Section 161 except as a explanation by the complainant regarding identity and knowledge of the petitioner's name. If this is seen in the background of absence of any mention of the petitioner in the FIR, the tenuousness of the link with allegations against him become apparent."99
In Smt. Deepa Bajwa v. State & ors 2004 [3] JCC 1754 (Del), it was observed as follows:
"6. After considering the submissions made by learned counsel for the parties, the Court is of the considered view that a complaint, on the basis of which the complainant seeks registration of an F.I.R., must disclose essential ingredients of the offence and in case a complaint lacks or is wanting in any of the essential ingredients, the lacuna or deficiency cannot be filled up by obtaining additional complaint of supplementary statement and thereafter proceed to register the F.I.R. If such a course is permitted, it would give undue latitude as well as opportunity to unscrupulous complainants to nail others by hook or by crook in spite of the fact that their initial complaint does not make out the offence complained of. Such a course would be utter abuse of the process of law. First version as disclosed in a complaint is always important for adjudicating as to whether an accused has committed or not an offence. In the complaint dated 19th April, 2001, the Complainant himself alleged that the Councillor Chhannu Mal was introducing him to the petitioner. If that was the case, how could he say later that on that day the petitioner knew that he was a Scheduled Caste. This statement, therefore, was a crude falsity introduced at the behest of the police to implicate the petitioner under Section 3 of the Act. This effort on the part of the police to 100 supply the deficiency and cover up a lacuna in the complaint in view of legal opinion was totally unwarranted and an abuse of the process of law."
In Bhagwanti v. State 2001(3) C.C. Cases (HC) 139 (Del), it was observed as follows:
"5. Now, applying the above principles, in this case, deceased (Rajni), was married to Dharampal on 27.09.1984; she committed suicide on 18.04.1990, after six years of her marriage. The statements of the parents and brother of deceased were recorded before SDM on 18.04.1990 and 19.04.1990 respectively. In their statements, they did not make any allegations against the petitioner. Their case was that the deceased being harassed by her husband as he was having illicit relations with his cousin Sunita Gandhi. In the backdrop probabilities and nature of the case, subsequent statements of the parents of the deceased under Section 161 Cr. PC recorded by the police during investigation containing vague allegations to the effect that petitioner used to taunt the deceased for inadequate dowry are liable to be rejected. These statements may give rise to some suspicion but not grave suspicion. I would hasten to add that the situation may have been different if the statements of the parents and brother of the deceased before the SDM were not in detail or if in the subsequent statements under section 101 161 Cr. PC there were some specific instances. The focus of the allegations appear to be against the husband and not again the petitioner. In view of the above no case for framing of charge against the petitioner is made out."
In Balakrushna Swain Vs. The State of Orissa 1971 CRI LJ 670 S. C., the following observations were made by Hon'ble Supreme Court:
"6. In view of all these incongruities we think there is justification in the comment of learned Advocate for the accused that the delayed examination of P.W.5 by P.W.19 would give an opportunity to P.W.5 to concoct a different version that what actually took place.
8. These contradictions ordinarily would by themselves not have much signifance but where as in this case the witness for no justifiable reasons was not examined for nearly 10 days and he is found to he telling falsehoods on material aspects of the case it becomes difficult to place any reliance on such testimony particulary when he tried to conform to the evidence of P.W.1 in the Sessions Court that the first blow was given by a lathi on the waist and the second by a Katuri on the head."
In Husna and others Vs. State of Punjab 1996 SCC (Cri) 421, the following observations were made: 102
"6. As already noticed, the FIR the names of both the appellants were found missing. They were only named in the supplementary statements of PW1 recorded during the investigation and in our opinion that statement which was recorded during the investigation was hit by Section 162 Cr. P.C and the trial court could not have relied upon the same as a part of the FIR."
In Maruti Rama Naik Vs. State of Maharashtra 2003 CRI LJ 4326 S. C., the following observations were made:
"6. ......PW3 is an injured witness, we find it difficult to place reliance on his evidence not only because of the omissions mentioned hereinabove but also because of the fact that his statement was recorded a day later when the investigating officer had ample opportunity to record the said statement on the day of the incident itself. The explanation given in regard to this unwarranted delay is that this witness was injured and had to be taken to Bombay and brought back to Panvel for treatment. Taking into account the nature of injuries suffered by this witness and the opportunity investigating officer had to record his statement, we think this explanation given by the prosecution is not convincing. Bearing in mind the fact that even according to this witness. Large number of people attacked the deceased and his omission to state the names of thse appellants as the assailants in his previous statement, we think it not safe to place reliance on the evidence of PW3 to find the appellants guilty of the offences charged 103 without there being any material corroboration from other independent acceptable source. That is even applying the test laid down by this Court in the case of Masalti Etc. V. State of UP (AIR 1965 SC 202) which was followed by the High Court in its judgment."
In Viswanath and another Vs. State of Madhya Pradesh 2005 CRI LJ 1913 MP, it was observed as follows:
"Investigation officer must recod the statement promptly in order to inspire confidence in such statements. As unexplained delay in examining a crucial witness would render the witnesses unreliable. Where the staements of relatives were recorded after long delay and no explanation of delay were offered, the evidence of witnesses cannot be relied upon where only general allegations of demand for dowry were made against the husband and other family members and there was no clear and cogent evidence involving them in demand for dowry."
In Ganesh Bhavan Patel and another Vs. State of Maharashtra AIR 1979 SC 135 of the Hon'ble Supreme Court observed as follows:
"15. As noted by the Trial Court, one unusual feature which projects its shadow on the evidence of P. Ws. Welji, Pramila and Kuvarbai and casts a serious doubt about their being eye-witnesses of the occurrence, 104 is the undue delay on the part of the investigating officer in recording their statements. Although these witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, their statements under S. 161 Cr. P.C were recorded on the following day. Welji (P.W.3) was examined at 8 a.m, Pramila at 9.15 or 9.30 a.m and Kuvarbai at 1 p.m. Delay of a few hours, simplicites, in recording the statements of eye-witnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. A catena of circumstances which lend such significane to this delay, exists in the instant case".
It was also observed as follows:
"18. In this connection, the second circumstance, which enhances the potentiality of this delay as a factor undermining the prosecution case, is the order of priority or sequence in which the investigating officer recorded the statements of witnesses. Normally, in a case where the commission of crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses. Here, the natural order of priorities seems to have been reversed."105
It was also observed as follows:
"29. Thus considered in the light of the surrounding circumstances, this inordinate delay in registration of the 'F.I.R' and further delay in recording the statements of the material witnesses casts a cloud of suspicion on the credibility of the entire wrap and woof of the prosecution story."' From the catena of decisions referred herein above it is clear that if a witness omits to make any important statement with regard to important fact in the FIR or in the earlier statement during investigation or otherwise, the subsequent improvement made by the witness is not acceptable as true version of the prevailing facts. The prosecutrix having omitted to state that the two accused Kuldeep and Munesh stated that they would guard the place and the two accused Harpreet and Satinder should finish the job and return quickly in her initial statement Ex PW2/A which led to the lodging of the FIR in this case, her statement to the effect either in the supplementary statement under Section 161 CrPC or before the court in the Examination-in-chief in this regard is liable to be discarded in the light of the case laws referred above. In her statement Ex PW2/A she has indicated that the other two persons Munesh and Kuldeep had left 106 with the vehicle. In the examination-in-chief on page No. 5 she stated after committing rape on her and being slapped by accused Harpreet and taking Rs. 120/- from her purse the accused Harpreet and Satender left and the other two accused (Munesh and Kuldeep) had already left with the vehicle. Another statement given by her soon after the incident of rape is at the time of her examination by PW1 Doctor Monica Hooda by narrating brief past history of sexual intercourse before her medical examination as given in her MLC Ex PW1/A. She has stated before the Doctor that the two men ( Munesh and Kuldeep ) went away without assaulting her. The other two raped her in turn. She did not say that the two accused who did not rape her were guarding the place. Doctor Monica Hooda PW1 in her Examination-in-chief has stated that the prosecutrix told her that the two men went away without assaulting her and the other two men raped her in turn. In the cross-examination conducted on behalf of accused, PW1 Doctor Monica Hooda specifically stated that the prosecutrix had told her that two persons went away and she had not told her that two persons were guarding the place. She also stated that as per the statement of the prosecutrix, those two persons have not assaulted her sexually. Therefore, it appears that though all the 107 four accused persons forced the prosecutrix to be seated inside the military vehicle but when they reached point 'C' shown in the site plan Ex PW 25/B and the scaled site plan Ex PW15/A the common intention of the accused Kuldeep and Munesh to rape the prosecutrix with the two coaccused Satinder and Harpreet came to an end. From this point of time and place 'C' shown in the said site plans they ceased to be part of the gang and only accused Harpreet and Satinder were the two members of the gang who had common intention to rape the prosecutrix and they took her away from the other two accused persons to the place "D' shown in these two site plans. The distance from the place'C' where the two accused Satinder and Harpreet along with prosecutrix separated from the other two accused Kuldeep and Munesh and the place 'D' where accused Satinder and Harpreet committed rape on the prosecutrix is shown to be 85 paces and as per arguments addressed on behalf of accused Munesh and Kuldeep it is 138 mts. It looks improbable that accused Munesh and Kuldeep would guard the place of rape from such a long-distance. Therefore, the facts and circumstances of this case clearly show that at the time of commission of the rape on the prosecutrix by the accused Harpreet and Satinder, the accused 108 Munesh and Kuldeep were not part of the gang of four accused persons who kidnapped the prosecutrix for the purpose of illicit intercourse and at the point 'C' shown in the site plan these two accused Kuldeep and Munesh ceased to have common intention to commit rape on the prosecutrix. In this regard, it would be relevant to reproduce paras 8 & 9 of the decision of the Hon'ble Apex Court in Hanuman Prasad's case (supra).
" 8. In the instant case no evidence was led to show that the appellants had a common intention of committing rape on the victim. This aspect unfortunately has been lost sight of by the High Court though the Trial Court has elaborately dealt with this aspect.
9. Above being the position the conviction as recorded by the High Court cannot stand and is set aside. Appeals are allowed. Appellants are on bail. Their bail bonds shall stand discharged. "
Hence, the prosecution has failed to prove its case against the accused Munesh and Kuldeep for the alleged offence under Section 376 (2) (g) IPC beyond reasonable doubt.
In the light of the foregoing discussion both accused Harpreet and Satinder are guilty of the offence under Section 376 (2)
(g) of IPC but accused Kuldeep and Munesh are entitled to be acquitted of the charge of the said offence.
109DEFENCE OF THE ACCUSED In the defence evidence accused Satinder has produced DW 1 Shri Paramjeet Singh, Naib Risaldar, PBG lines, Delhi who has proved the copy of page No. 132 of the register as Ex DW1/ PA to show that the military vehicle in question went out at 10.55 AM and returned at 12.10 p.m. The same is the evidence led by the prosecution already on record by producing PW 10 Vidya Dhar Singh who proved the copy of the register Ex PW 10/A. But the PW 10 has specifically stated that the said entry in the register was made by accused Satinder, himself. Therefore, this entry in the register has lost its authenticity as is already discussed earlier in the instant judgment. Hence, the defence of the accused Satinder is not credit-worthy to rebut the case of the prosecution against him.
The mere statements of the four accused persons recorded under Section 313 CrPC denying the prosecution case or stating that they are innocent does not absolve them from the liability in the case in the absence of any credible defence led by the accused persons or showing any material defect in the prosecution case and evidence adduced by the prosecution. The argument on behalf of the accused persons that they were on duty at PBG lines 110 and were not present at the spot is also not acceptable. If it was so, why did they not produce any credible evidence and witnesses from PBG lines who could have testified before the court that they were present at the relevant time during the official duty in PBG lines? The fact that accused persons committed the offences while on duty aggravates the matter for them and is not an acceptable plea of alibi in the face of evidence on record that they were present at the spot at the relevant time.
RESULT OF THE CASE:
In view of the above discussion, I hold that the prosecution has been able to prove its case beyond reasonable doubt against all the four accused persons for the charges for the offences under Sections 394/34 and 366/34 IPC. It has also proved its case beyond reasonable doubt against accused Satinder and Harpreet for the charge of offence under Section 376 (2) (g) IPC. There is also nothing in the defence led by the accused Satinder or the statements under Section 313 CrPC of the accused persons which may discredit or rebut the prosecution case for the said charges. Therefore, all the four accused persons are convicted of the charges for the offences 111 under Sections 394/366/34 IPC and accused Harpreet and Satinder are also convicted of the charge for the offence under Section 376 (2)
(g) IPC. However, the prosecution has failed to prove its case against accused Kuldeep and Munesh for the charge for the offence under Section 376 (2) (g) IPC. These two accused Kuldeep and Munesh are acquitted of the said Charge under Section 376 (2) (g) IPC. The judgment be sent to the server (www.delhidistrictcourt.nic.in). Let the accused persons be heard on the point of sentence.
Announced in the open court on 17/08/09 ( S K Sarvaria ) Addl. Sessions Judge : 01 : South New Delhi